BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF OREGON for the SECRETARY OF STATE ELECTIONS DIVISION
IN THE MATTER OF: ) PROPOSED ORDER ) SARAH AMES, ) OAH Case No.: 1102579 Respondent ) Agency Case No.: 11-102-SA
HISTORY OF THE CASE
On August 24, 2011, the Elections Division (Division) issued a Notice of a Final Determination and Intent to Impose a Civil Penalty; Contested Case Notice and Opportunity to be Heard, and Final Order by Default Imposing Civil Penalty if No Request for Hearing is Received (Notice of Violation) to Sarah Ames (Ames).1 On August 24, 2011, the Division issued a Notice of Violation to Katherine Essick (Essick). On October 25, 2011, Ames and Essick both requested a hearing.
On October 26, 2011, the Division referred the hearing requests to the Office of Administrative Hearings (OAH) and requested that the cases be consolidated for hearing. Senior Administrative Law Judge (ALJ) Dove L. Gutman was assigned to preside at hearing.
On February 13, 2012, a consolidated hearing was held in Salem, Oregon. ALJ Gutman presided. Nancy Hungerford, Attorney at Law, represented Ames and Essick. 2 Assistant Attorney General Lynn Rosik represented the Division. Ames and Alana Cox, a Division Compliance Specialist, both testified.
On March 5, 2012, the hearing reconvened. ALJ Gutman presided. Ms. Hungerford represented Ames and Essick. Ms. Rosik represented the Division. Ames and Essick both testified. The record was held open to receive closing arguments and reply briefs. On March 30, 2012, the Division and Ms. Hungerford filed closing arguments. On April 13, 2012, the Division filed a reply brief. On April 16, 2012, Ms. Rosik submitted copies of Exhibit C1 pages 62-68. 3 The record closed on April 16, 2012.
ISSUES
1. Whether Ames violated ORS 260.432(2).
2. Whether a civil penalty in the amount of $75 shall be imposed against Ames.
1 The Notice of Violation is dated August 24, 2011 but was mailed on August 25, 2011. 2 The companion case is OAH Case No. 1102578. 3 The pages were missing from the record.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 1 of 103 EVIDENTIARY RULING
Division. Exhibits A through F were admitted into evidence without objection.
Ames. Exhibits 2 through 4, 6 through 12, and 14 through 19 were admitted into evidence without objection. Page 2 of Exhibit 1 was admitted into evidence without objection. Page 1 of Exhibit 1 and Exhibit 13 were withdrawn by Ames. Exhibit 5 was admitted into the record over the Division’s relevance objection.
FINDINGS OF FACT
Background
1. In 2010 and 2011, Carole Smith was the Superintendent of Portland Public Schools (PPS); Jollee Patterson was general counsel at PPS; and Jeff Condit was outside counsel for PPS. Among other things, Ms. Patterson and Mr. Condit were responsible for reviewing materials for compliance with election law. (Test. of Ames; Ex. C1 at 1-3.)
2. In 2010 and 2011, Robb Cowie was the Executive Director of Community Involvement and Public Affairs (CIPA) at PPS; C.J. Sylvester was the Chief Operating Officer of CIPA; Ames was the Public Affairs Director of CIPA; Matt Shelby was the Public Information Officer of CIPA; Kathryn Essick (Essick) was the Family Communications Manager of CIPA; and Brian Christopher (Christopher), Francisco Garcia (Garcia), and Richard Martin (Martin) were part of the Educational Media Services of CIPA. (Test. of Ames, Essick; Ex. C1 at 1-3.)
3. Mr. Cowie was the supervisor of Ames and Essick. Ames was the point person for bond communications. She was responsible for drafting and editing materials. Essick was responsible for copy editing and oversight of the PPS Pulse, a monthly e-newsletter sent to approximately 40,000 members of the PPS community. Christopher, Garcia, and Martin provided technical production support in graphic design and web posting. (Test. of Ames, Essick, Ex. C1 at 1-3.)
4. The Portland School District is located in Washington, Clackamas, and Multnomah counties. (Test. of Cox.)
5. On or about November 8, 2010, Superintendent Smith proposed a bond measure to the Portland Public Schools Board of Directors. (Test. of Ames; Ex. C1 at 78.)
6. On December 8, 2010, a document entitled “Frequently Asked Questions: The PPS School Modernization Proposal” was posted on the PPS website. The document answered many of the questions posed to PPS by community members.4 The document provided, in part:
1. How big is Portland Public Schools?
4 The document consists of thirty-nine questions and answers. (Ex. C1 at 67-78.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 2 of 103 Portland Public Schools is the largest school district in Oregon with roughly 47,000 students in 85 schools, including neighborhood and focus schools, in addition to charters, alternatives and special programs. Portland Public Schools is the second largest property owner in the city and one of the region’s largest employers with more than 6,000 teachers and school support staff.
2. How old are the school buildings?
The average age of PPS schools is 65 years old. Most were built either in the 1920s or just after World War II. Only two schools have been built in the last 40 years (Rosa Parks Elementary in North Portland and Forest Park K-8 in Northwest). While PPS has added computers and other technology to schools, and has addressed some of the most urgent building needs – such as earthquake safety and roof replacement – our school buildings have never been fully updated.
3. Why is Superintendent Carole Smith proposing a bond measure?
PPS students do not have the same up-to-date classroom equipment, technology and other modern learning spaces as students in the neighboring school districts with newer buildings.
PPS school buildings have never been fully updated. The buildings have worn out with leaking roofs and drafty windows; energy-inefficient and antiquated heating, ventilation and plumbing systems; overtaxed electrical systems with few outlets and outdated safety systems.
A bond will provide dedicated money to address these needs and provide student and teachers with modernized schools. Without a bond, Portland Public Schools must continue to use scarce operating dollars for the most urgent building needs.
4. What will the proposed school building bond buy?
All 85 schools will receive one-time student safety, security and building system updates, such as: replacing roofs, updating boilers, improving accessibility for disabled students and adults, and increasing student safety and security by installing new fire alarm systems, making seismic upgrades and providing secure access at entryways.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 3 of 103 All schools will receive updates to classroom learning environments and updated teaching technology. Every K-8 and middle school (37 schools) will have an upgraded science lab, and 33 elementary and K-8 schools will have covered playground areas for outdoor physical education and recreational use. Six high schools not being rebuilt will have classroom updates to support rigorous teaching and learning, and will receive updates to their sites, such as landscaping, seed money for field upgrades, lighting, signage, walkways and renovated entrances.
Schools across the city with high-priority needs – out-dated educational environments and safety and structural concerns – will be rebuilt. Three high schools and five elementary and K-8 schools will be rebuilt and modernized, so PPS students have the same technology, equipment and up-to-date learning environments as students in neighboring school districts with newer buildings. The schools are Cleveland, Jefferson and Roosevelt high schools, and Faubion, Laurelhurst, Markham, Marysville and Rigler elementary and K-8 schools. In addition, Lincoln will undergo comprehensive planning and design to prepare it for rebuilding in the next voter-approved bond.
To lower costs and save taxpayer funds, debt will be retired on funds borrowed to complete Rosa Parks School and the nine school roofing projects completed in 2009 that included seismic upgrades and solar energy collection.
*****
9. What will the initial proposed construction bond cost me?
This bond will raise $548 million for classroom, safety and security improvements at every school in the district over six years. The typical homeowner would pay about $300 a year, or about $25 per month.
The proposed bond’s rate – approximately $2 per $1,000 of taxable assessed value – is in the middle of the rates voters approved in neighboring school districts, which range from about $1 to over $4 in some school districts.
Portland Metro Area School Districts FACILITIES BOND RATE Gladstone $4.54 Sherwood $4.07 Forest Grove $3.53
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 4 of 103 West Linn-Wilsonville $2.97 Riverdale $2.85 Hillsboro $2.61 Corbett $2.55 Canby $2.31 Oregon Trail $2.27 Centennial $2.26 Beaverton $2.09 North Clackamas $2.08 David Douglas $1.61 Oregon City $1.41 Tigard-Tualatin $1.38 Reynolds $1.13 Parkrose $1.08 Gresham Barlow $1.06 Lake Oswego $1.04 Portland Public Schools $0.00 AVERAGE $2.25
The median home in the Portland Public Schools district is worth $277,700 (Real Market Value) and is taxed at a value of $147,500 (Taxable Assessed Value). Half of the homes are worth more, half less. To calculate your own cost, multiply the Taxable Assessed Value (TAV) on your bill by $2 and then divide by 1,000. That’s the approximate annual rate; if you pay monthly escrow, divide by 12 for your monthly cost.
Portland Public Schools’ taxes are just over a quarter of local property tax bills, 27 percent. Although overall property tax rates are higher in Portland than in surrounding areas, which is due to other government authorities’ tax rates, as [sic] school property taxes are lower. In general, an estimated $2 increase in the PPS tax rate would lead to a 9 percent increase in taxpayer’s overall rate.
(Ex. C1 at 67-78; emphasis in original.)
7. On January 6, 2011, PPS filed Ballot Measure 26-121 with Multnomah County Elections, which stated, in pertinent part:
CAPTION
PORTLAND PUBLIC SCHOOLS BONDS TO UPDATE, RENOVATE LOCAL SCHOOL BUILDINGS
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 5 of 103 QUESTION
Shall PPS update, rebuild, increase safety at public schools; retire debt; issue $548 million in general obligation bonds, audit spending? If the bonds are approved, they will be payable from taxes on property or property ownership that are not subject to the limits of sections 11 and 11b, Article XI of the Oregon Constitution.
SUMMARY
Portland Public Schools buildings average 65 years old. Safety, security, classrooms and technology are out of date in nearly every building.
Bond funds support capital projects at 95 schools:
86 schools receive updates such as: Fire and life safety; Electrical, plumbing, lighting, roofing, heating, security; Earthquake safety, handicapped accessibility; Modern science classrooms; Classroom teaching technology; School grounds, exteriors, fields.
9 schools rebuilt: N/NE Portland: Roosevelt High; Faubion, Rigler, Laurelhurst SE Portland: Cleveland High; Marysville West Portland: Markham Elementary, East Sylvan on West Sylvan campus Middle College Program with Portland Community College at Jefferson High.
Planning, design to prepare for rebuilding Lincoln High
Bond funds will retire existing school projects debt.
Citizen oversight and annual audits of bond projects and expenditures are required.
Most bonds mature in 1-3 years to minimize interest expense. Cost estimated to be approximately $2 per $1,000 assessed property value for six years, then reduced. 5 Median homeowner pays $300
5 The explanatory statement indicated that the reduced payment would be an estimated fifteen cents per $1,000 assessed property value for a period not to exceed 20 years. The explanatory statement is fully incorporated by reference. (Ex. A3 at 4-6.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 6 of 103 annually for six years, reduced to approximately $22 annually.
(Ex. A3 at 1-6; emphasis in original.)
8. On February 7, 2011, a document entitled “From the Superintendent” was issued to all PPS employees. The document provided, in relevant part:
Dear [member name],
I just wanted to let you know that the Portland School Board has referred a replacement local option levy to the May 17 ballot. In short:
• State funding is 75 percent of our general education funding; the Governor’s budget proposal for the State School Fund could leave PPS with an $80 to $90 million shortfall over the next two years. • The levy would provide an additional $19 million a year. This will pay for more than 200 positions in our schools – teachers and classified educational staff. • The rate, at $1.99 per $1,000 of taxable assessed value, is 74 cents higher than the 2006 levy it would replace. The levy will cost the typical homeowner an estimated $24.45 a month, an increase of $9.09 per month over the current levy. • The additional funding from the local option would help retain educational staff, programs in our schools and class sizes. However, PPS would still need to make substantial budget cuts.
I continue to work with our budget office, principals and other members of the staffing team, and PPS leaders to plan for next year. Voters will not decide on the local option until May 17, so I will prepare a budget both with and without that additional $19 million in staffing support.
I know this difficult budget time adds uncertainty for everyone in the school district – employees, students, families and our partners. I will continue to share the information I can and to invite your input.
Thank you for all you do for our students.
[signature]
Carole Smith
P.S. As with the school facilities bond measure, restrictions on public employee campaigning apply to the local option. You may
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 7 of 103 share factual information, but may not advocate for or against the local option levy while at work or using any district resources. The guidelines for public employees are posted online for easy reference.
(Ex. C1 at 18-19; emphasis in original.)
9. On February 18, 2011, PPS filed Ballot Measure 26-122 with Multnomah County Elections, which stated, in material part: 6
CAPTION
Portland Public Schools levy for teacher and educational programs.
QUESTION
Shall schools protect class size, teaching positions; levy $1.99 per $1,000 assessed value for five years beginning 2011; require oversight?
This measure may cause property taxes to increase by more than three percent.
SUMMARY
Portland Public Schools’ voter-approved local option levy currently provides funding for retaining teachers and providing instructional programs that students need for a well-rounded education. As PPS responds to substantial cuts in state funding to local schools, continuing a local option will:
Fund 600 teaching positions (some in every school), including 200 that would be lost in the coming school year due to state budget cuts without levy funds;
Prevent substantial increases in class size so students receive more individual attention from teachers;
Continue educational programs necessary for a well-rounded education.
Levy cost is $1.99 per $1,000 assessed property value of which $1.25 per $1,000 assessed property value is currently being paid. Typical home currently pays $15.36 per month which would be replaced by payment of $24.45 a month for five years.
6 The explanatory statement is incorporated fully by reference. (Ex. A3 at 8-10.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 8 of 103 No levy funds go to administration. Independent citizen oversight will review expenditures so funds are used as approved by voters.
The levy will produce an estimated $57 million in 2011-12; $58 million in 2012-13; $62 million in 2013-14; $65 million in 2014- 15; and $66 million in 2015-16.
(Ex. A3 at 7-10; emphasis in original.)
10. On April 2, 2011, Betsy Hammond published an article in The Oregonian that stated, in relevant part:
Portland Public Schools’ building plan comes with a premium price tag
Portland Public Schools leaders have presented their $330 million plan to remake nine of the districts’ aging schools as prudent, low-to mid-cost and in line with surrounding districts.
But an analysis by The Oregonian shows that the district plans to spend $325 a square foot to fully renovate six old schools and $415 a square foot to build a small, updated Jefferson High.
Those rates are at least 15 percent to 30 percent higher than average school construction costs for the region as reported in School Planning & Management’s 2011 Annual School Construction Report and extrapolated from construction cost specialist Rider Levett Bucknall’s quarterly cost estimates. They also far exceed the costs that districts including Beaverton and North Clackamas have paid to build or fully remodel schools in recent years.
The largest project Portland proposes, a full-scale renovation of 1920s-era Cleveland High for an estimated 2011 price tag of $80 million, would be among the most expensive high schools ever built or rebuilt in Oregon. The projects would be paid for by a $548 million bond on the May ballot. If voters pass the bond, the typical homeowner will pay about $300 a year to foot the bill.
Portland Public Schools’ chief operating officer, C.J. Sylvester, and director of school modernization, Sarah Schoening, have repeatedly characterized the district’s plans as durable, practical and without extravagance. Both said the costs would be at the midrange or low end of midrange compared with other schools in the region.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 9 of 103 But regional cost summaries by the two companies that track school construction, plus a sampling of recent school construction projects analyzed by both The Oregonian and Portland Public Schools, all show that Portland plans to spend significantly more than average to fully remodel and update schools with a glaring need to be modernized.
Portland’s projected costs “certainly do not fit in what would be called the low to middle range, that’s obvious,” said Paul Abramson, an education construction consultant and author of School Planning & Management’s annual school-construction reports.
Among area school districts, only West Linn-Wilsonville and Riverdale have spent as much as or more than Portland is budgeting. Those districts, where leaders say their voters insist on the finest learning environments for their students, budgeted $400 to $460 a square foot for small elementary schools in the past couple of years.
Sylvester and Schoening defend Portland’s construction budgets as responsible, ensuring that the district can fully remake eight schools and a wing at a ninth school, West Sylvan Middle School, without compromising student safety or school durability – or running over budget. Experts in design and construction costs have reviewed and endorsed the district’s numbers, they said.
District officials can’t cite a high school in Oregon that cost anywhere near $325 a square foot to renovate or $415 to build from scratch. But they caution that relatively few schools have been built recently and few high schools undergo in-depth remodels like Portland plans.
(Ex. C1 at 85-90; emphasis in original.)
11. On April 2, 2011, in response to the article in The Oregonian, C.J. Sylvester issued a letter that stated, in material part:
To the Portland Public Schools community:
The proposed bond for Portland’s Schools will rebuild deteriorated school buildings while providing safety, structural upgrades and modernized learning environments. The list of projects is significant, as are the measures taken to ensure the construction and financing connected to the bond is accountable, transparent
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 10 of 103 and appropriate.
With guidance from independent construction engineers and professional cost estimators who know school construction, Portland Public Schools developed a comprehensive budget for our school bond program.
The bond will provide safety and other needed updates at every one of our schools – and we have laid out a budget that ensures we can deliver every project on time and on budget, as promised to voters.
Our pay-as-you-go financing plan, which primarily relies on short- term financing will save more than $200 million in interest payments.
These are some key points about our school construction budget:
Few other school districts – outside Seattle – have completed truly similar projects, meaning project-to-project comparisons inside Oregon are difficult to make.
Many other Oregon school districts, unlike PPS, have school construction bonds in place. But most recent projects, especially in Portland’s suburbs, are new construction on open fields. PPS projects are full renovation of historic buildings that are 70 to 100 years old, on tight urban sites in dense neighborhoods. Our schools are on average 65 years old, and most have never been fully updated. They are outdated, with leaky roofs, inadequate electrical, plumbing and classroom equipment.
What we are proposing is different and more extensive than the work done in many other Oregon school districts. For example, a modest remodel of lighting, windows, paint and flooring costs far less per square foot. Few if any other Oregon school projects included full earthquake retrofits, full modernization of schools or re-construction in compact urban areas – with attention to retaining the historic character of the neighborhood. Earthquake safety upgrades alone can account for 15 to 30 percent of school construction costs.
The school construction projects in PPS are most similar to those that have been recently accomplished by Seattle Public Schools, an urban school district that also has roughly 47,000 students. Seattle is halfway through rebuilding their schools which, like ours, are older buildings with historic character (and failing systems) in
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 11 of 103 dense neighborhoods. The PPS budget, however, is lower than in Seattle as construction costs in this market are roughly 5.5 percent lower (exclusive of Washington’s sales tax) based on generally accepted industry sources.
Independent school construction cost estimators set the base construction costs for PPS’s budget.
Because few local school projects are comparable to the work PPS proposes, two independent cost estimators offered base construction costs for PPS budgeting. Both have extensive experience and expertise in K-12 construction. Those third-party cost estimators proposed a budget of $332 to $358 per square foot for rebuilding historic schools. PPS then shaved the cost closer to the lower amount for estimating costs in our budget. Brand new construction costs more than renovating.
Portland’s bond measure budgets include elements that other budgets sometimes omit. The PPS bond construction budget includes contingency funds to ensure projects come in on budget and that all costs are covered – preventing cost overruns and protecting the general fund budget for teachers.
An article in The Sunday Oregonian focuses on how our projected costs compare to the average costs of dissimilar school construction across Oregon. Costs of such different projects are not nearly as reliable a standard as the independent professional expertise of school construction cost estimators.
We hope you take the time to consider the full picture and complexities of the issue. For any of you who have had the opportunity to see even one of Seattle’s school renovations, you know what a fully modernized historic school can provide the neighborhood, teachers and most of all students who are seeking to compete in a truly global economy.
(Ex. C1 at 82-84; emphasis in original.) The letter was sent out via email on April 2, 2011 to members of the PPS community. The letter was also posted on the PPS web page on Monday, April 4, 2011. (Test. of Ames.)
12. On April 4, 2011, Matt Shelby, Public Information Officer of CIPA, emailed Carla Corbin, the Division’s Lead Compliance Specialist, requesting review of a voter information card that PPS had prepared for the upcoming election. 7 (Ex. A4 at 1-2.)
13. On April 5, 2011, Ms. Corbin emailed Mr. Shelby her response, along with
7 The voter information card is not part of the violations in this matter. (Exs. A4, C1, F.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 12 of 103 suggested changes to the voter information card. Among other things, Ms. Corbin took issue with the use of the words “safety” and “need” on the card. Ms. Corbin also suggested PPS cite sources and include the total cost per year for the average house in the district. Ms. Corbin attached the Division’s “ORS 260.432 Checklist of Factors to Assist in Determining Impartiality” (the Factors) to her response. (Ex. A4 at 1-14.)
14. On April 6, 2011, Ames responded to Ms. Corbin’s email, stating, in pertinent part:
Thank you for your prompt and thorough review on Tuesday of the draft mailing we plan to send to residents in the PPS district (PIO Matt Shelby forwarded it to you on my request.)
*****
While I revised and limited references to “safety” as you advised, that is part of the ballot language and a significant part of the expenditures proposed in the bond program (earthquake retrofits, stage rigging safety, lighting and landscaping, key-card managed access at every school to improve security, and other measures). I believe that the few remaining and revised references to safety are appropriate and sufficiently impartial, and can be backed up by the facts.
Finally, this draft retains the median home as the sample to explain the impact on typical homeowners. I have explained the term “median” -- half pay more, half less -- to make this a more clear example. I propose to use “median” rather than “average” for two reasons:
1) it reflects the ballot language.
2) more important, it is a significantly more accurate reflection of the typical homeowner in our district.
A review of the database of every PPS residential property value (provided by the Multnomah County assessor) shows that fewer, higher value homes skew the average in our jurisdiction. Twice as many homes are taxed at values under the average taxable assessed value as over (more than 66 percent of homes have TAVs lower than the average TAV). There may be many other jurisdictions where this imbalance is not the case, but analysis of actual property values in Portland leads me to feel strongly that offering the average impact on homeowners would be statistically misleading.
(Ex. A4 at 15-16; emphasis in original.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 13 of 103 15. On April 6, 2011, Ms. Corbin sent an email to Ames that stated, in material part:
The use of safety in the headings on the first and second page gives the impression the measure will guarantee safety. Of course this is an impossibility. Had I reviewed the ballot title I would have suggested the same changes using safety in this context.
Adding half pay more, half pay less is better. However, the factors require the total cost per $1,000 of value be included. Without this information a document would not be impartial.
(Ex. A4 at 15.)
16. On April 8, 2011, Ms. Hammond published an article in The Oregonian that stated, in relevant part:
State guidelines are explicit on election issues
Portland Public Schools maintains it’s been careful to follow the law in its bond-related mailings.
Leaders of Portland Public Schools appear to have repeatedly flouted the state law that prohibits public agencies from putting out material to promote an election issue.
Since the school board voted in December to put a $548 million school construction bond before voters in May, district employees have produced and sent out numerous emails, news releases fact sheets and brochures.
Despite explicit state guidelines that any material produced by public employees be neutral and dispassionate, some district materials have relied on emotional appeals about student safety in “our schools,” used bold type and headlines to highlight the most favorable aspects of the bond, and omitted or downplayed the costs to taxpayers.
The state’s expert, Elections Division compliance specialist Carla Corbin, wouldn’t comment on Portland’s materials without a formal complaint. But she said that if any document discussed the bond without clearly stating the yearly tax increase for the average homeowner, it would not be considered impartial under the guidelines.
A state manual gives detailed guidance for complying with the law. “The material needs to contain a balance of factual
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 14 of 103 information,” it says. “The material may not lead the voters to support…the measure by selective use of factual material, even if the material does not expressly urge a yes vote.”
District officials said they have been careful to follow the law and had lawyers review some materials.
Public affairs director Sarah Carlin Ames acknowledged that at least two bond-related items sent to all parents and employers omitted the cost to taxpayers. But that was an oversight in one case and not required in the other, she said.
She added the cost figures Thursday to a document sent to parents in February and posted on the district website on the benefits of turf fields the bond would fund.
Records show the district also sent or posted fact sheets about the need for security and safety upgrades, the importance of seismic retrofits and the soundness of its construction budget without mentioning the $548 million price tag, how much taxpayers would pay or for how long.
Ames acknowledged the district sometimes listed monthly costs to taxpayers, not yearly costs, despite state guidelines to the contrary. That will be fixed, she said.
Many of the most blatant conflicts with state guidelines are in an eight-page color brochure sent to all district households in the past week at a cost of $36,500.
The state manual advised against using words such as “important,” personal pronouns such as “we” and “our,” customized looks at how a particular part of town would benefit and glowing language about the performance of the government that wants a bond. The brochure has all of those.
District spokesman Matt Shelby noted that the mailing is similar to progress reports the district sent in September 2008 and November 2009. But this one was sent weeks before ballots will be mailed and highlights the good the bond would do for schools.
Even if Portland were found in violation of the law, the consequences are small. The maximum fine for any kind of violation is $250.
(Ex.18.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 15 of 103 17. On April 8, 2011, Eric Fruits filed a complaint with the Division, requesting an investigation into the allegations outlined in the Oregonian article. Mr. Fruits alleged that PPS did not include interest costs in its publications in violation of the guidelines provided in “Restrictions on Political Campaigning by Public Employees.” (Ex. A5 at 1-5.)
18. On April 8, 2011, Ms. Corbin issued a letter to Superintendent Smith that stated, in pertinent part:
Dear Superintendent Smith:
Today this office received a written complaint alleging possible election law violations. The complainant, Eric Fruits, Ph.D., alleges Portland Public School employees may have violated election law when materials pertaining to ballot measures 26-121 and 26-122 were published. A copy of the complaint is enclosed.
ORS 260.432 is the relevant Oregon election law. It prohibits public employees from promoting or opposing candidates, election petitions, measures or political committees, while on the job during working hours. ORS 260.432 also prohibits any person from requiring a public employee to participate in such activities. During non-work time, public employees are free to engage in any lawful political activity.
To make a determination regarding the allegations, you are requested to provide any information you consider relevant to this complaint and respond in writing to the following questions.
1. Please provide copies of all materials published and distributed or posted on the district website.
2. Please provide the names and titles of all the public employees who drafted, reviewed, approved, published and distributed or posted these materials. Also, provide whether these tasks are a part of the employee’s regular job duties.
3. Please provide the name of the individual ultimately responsible for the publication, distribution and posting of these materials?
Our inquiry into this matter does not mean we have determined any provisions of Oregon election law have been violated. Please include any additional written comments you may have. Your response may be mailed or faxed to (503) 373-7414. Please submit this information to us by April 22, 2011. We will inform you of the outcome of our review and any other actions on this
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 16 of 103 matter.
(Ex. B1 at 1; emphasis in original.)
19. On April 12, 2011, Richard Ellmyer filed a complaint with the Division, alleging that PPS used median in its publications rather than average cost per house in the district. (Exs. A5 at 6-7, D1 at 1.)
20. On April 12, 2011, Mr. Shelby emailed Ms. Corbin, requesting review of an information sheet prepared by PPS for each school in the district. 8 (Ex. A4 at 18-20.)
21. On April 15, 2011, Ms. Corbin emailed Mr. Shelby her response. Among other things, Ms. Corbin took issue with the use of the following words and phrases:
• priorities • safety measures • safety upgrades • cleaner, more efficient • modern educational environment • would expand students’ educational experience • meet modern earthquake safety standards • meet up to date ADA requirements • median • half would pay more, half less
(Ex. A4 at 17-20.)
22. On April 19, 2011, Nathan Dahlin filed a complaint with the Division, alleging that the publications produced by PPS were not written in an impartial manner. (Exs. A5 at 11-13, D1 at 2.)
23. On April 22, 2011, William Schneider, DC, filed a complaint with the Division, alleging that PPS violated ORS 260.432. (Exs. A5 at 18, D1 at 2.)
24. On April 22, 2011, Robb Cowie, Executive Director of CIPA, sent a letter to Ms. Corbin that stated, in relevant part:
Thank you for the opportunity to share the materials you requested in your letter of April 11, 2011. Portland Public Schools has a responsibility to share information about the school construction bond and operating levy on the May 2011 ballot, with PPS staff, families and the broader community. The primary information items we have produced are attached.
8 The information sheet is not part of the allegations in this matter. (Exs. A4, C1, F.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 17 of 103 We believe that the materials under review fully comply with both the statutory requirements (ORS 260.432) and the Secretary of State’s 2008 manual “Restrictions on Political Campaigning by Public Employees.” 9
We take the law and manual very seriously. Throughout this effort, we have been careful to comply with ORS 260.432, which states that “No public employee shall … promote or oppose any political committee or promote or oppose …the adoption of a measure … while on the job during working hours.”
Our bond and levy-related informational materials are factual and do not promote or oppose the measures. In developing these materials, we regularly consulted the 2008 manual and our General Counsel Jollee Patterson and outside counsel, Jeff Condit of Miller Nash LLP, and have made revisions based on their advice.
We have also sought legal review of standard PPS publications that we routinely produce, which also contained information about the proposed measures, such as our annual report, “Focused on what counts,” and our electronic newsletter PPS Pulse. We used these vehicles to communicate about the bond and levy because that it [sic] is how parents and community members have routinely received information from Portland Public Schools (and there is little additional effort or cost to include the bond and levy information in existing publications). We were very careful to keep the bond and levy-related information separate from other articles and information in those publications.
These materials were also reviewed by counsel. We did not publish and distribute them until they were expressly approved, including our annual report.
Not only have we complied with the law in the drafting of our materials, we have shared its provisions with all school district employees on multiple occasions.
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As noted in the 2008 Manual (page 21), the factors set forth for considering a violation are not rules, and we understand that they do not in and of themselves indicate that a given informational
9 The “2008 Restrictions on Political Campaigning by Public Employees, ORS 260.432” (the Manual), is set forth in relevant detail in finding of fact (26). The Manual contains fifteen factors (the Factors) to review when determining whether material is advocacy. The Factors are summarized in the Manual on page 45. (Ex. A1.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 18 of 103 piece is in violation of the statute. Rather, we understand that any reading of specific language within each individual publication should be viewed in context of the piece as a whole to determine compliance.
The recent case of In the Matter of Maiocco and Smith , OAH Case Nos. 1001511 and 1001512 (April 2010), considered facts remarkably similar to the current complaint against PPS. In Maiocco , the Hermiston School District had sent out an annual report that included information about an upcoming bond measure. A citizen complained about the timing of the publication, and the Elections Division expanded the review to include the language of the report. The administrative law judge overturned the Division’s decision that Maiocco and Smith had violated ORS 260.432(2), finding that neither the timing nor the language of the publication “promoted” the bond. The judge further found that the division could not impose a penalty based upon the Division’s “Restrictions” guidance document, as that would be treating the “Restrictions” guidance as unpromulgated rules, and also could not hold Maiocco and Smith responsible for not incorporating the Division’s “suggestions” from review of another document into the language of the annual report. Similarly, with PPS’ Annual Report, neither the timing nor the language of the document “promotes” the upcoming bond measure or levy in violation of the statute.
As the executive director of Community Involvement and Public Affairs, I have overseen our communications and outreach efforts, and am ultimately responsible for the materials published, distributed or posted.
(Ex. C1 at 1-2.) Mr. Cowie attached the materials requested by Ms. Corbin. Mr. Cowie also enclosed a list of PPS employees and their role in production of the relevant materials. (Ex. C1 at 1-5.)
The Division’s role and the Manual
25. Upon receiving a signed written complaint regarding a potential violation of ORS 260.432, the Division’s role is to investigate the complaint and determine whether the relevant document is impartial. If the document is considered advocacy, a violation exists. (Test. of Cox; Exs. C1, F, 15.)
26. In March 2008, Bill Bradbury, then Secretary of State, issued the “2008 Restrictions on Political Campaigning by Public Employees, ORS 260.432” (the Manual), which provides, in material part:
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 19 of 103 IMPARTIAL BALLOT MEASURE INFORMATION
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FACTUAL VERSUS PROMOTIONAL MATERIAL PREPARED BY PUBLIC EMPLOYEES
Written (or video/audio) material prepared or distributed by public employees must be impartial. “Impartial” means equitable, fair, unbiased and dispassionate. The material needs to contain a balance of factual information. This means that the material may not lead the voters to support or oppose the measure by selective use of factual material, even if the material does not expressly urge a yes or no vote. Impartial ballot measure information should be objective material on the effects of the ballot measure – information providing the public with a fair presentation of all relevant facts.
A summary of the more detailed advice that follows is that impartial ballot measure information must be neutral , not persuasive or speculative, and backed up as appropriate by citations of source of information or some substantiating information or citation of authority to which a voter might refer to confirm the statements. The tone must be dispassionate rather than enthusiastic. The document should not include consequences of non-passage described in a way to elicit strong public response. The information should be a description of what the measure does, an unbiased statement of objective fact , not a justification of why the measure is needed.
The material may be determined to be advocacy if, when read in its entirety, it appears to be intended to generate votes for or against the measure. A reader should finish reading the information and think, “I have learned something about the measure,” not, “Now I know why I should support (or oppose) the measure.”
The distinction between strictly factual information about ballot measures and material that is considered to be promoting or opposing a measure must be made by reviewing the entire material, in the context of the presentation. We note that a publication that purports to contain only factual information may not necessarily be impartial, if the “facts” are presented in a persuasive manner.
According to the Attorney General in a letter dated October 5, 1993, “public bodies may use public funds to inform voters of facts
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 20 of 103 pertinent to a measure, if the information is not used to lead voters to support or oppose a particular position in the election.” It goes on to state, “However, we also have pointed out that ‘informational’ material may be found to ‘promote or oppose’ a measure even if it does not do so in so many words if the information presented to the public clearly favors or opposes the measure and, taken as a whole, clearly is intended to generate votes for or against a measure.”
DETERMINING WHETHER MATERIAL IS CAMPAIGN ADVOCACY:
Some factors that will be considered in making the determination of whether the material is advocacy include, but are not limited to, the following: NOTE: Any of the factors listed below, viewed in isolation, may not be sufficient to reach this conclusion. However, taken as a whole, the combination of factors may indicate that the material is campaign advocacy.
a) The timing of the publication relative to the election may, in some situations, be a factor if material is not typically published except at the time of an election and the information can be construed as advocacy.
Example 1: A special district produces a newsletter published shortly before a May election at which incumbent board members are candidates and the newsletter prominently features photographs of all of the current board members. Whether or not this newsletter is considered advocacy for the candidates must be made based on a review of the entire newsletter. At a minimum, the newsletter should not address the fact that some of these board members are also candidates at an election and should not include any information that could be perceived as advocacy for a candidate.
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b) The contents of the document must not explicitly urge a yes or no vote for the measure. There should be no “vote yes” or “vote no” type language. For example, the document should not include phrases such as:
• “Vote Yes on Measure 99,” • “Support for Measure 99 is encouraged,” • “Measure 99 asks ABC County voters to authorize a temporary fee increase,”
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 21 of 103 • “The County is asking voters to approve funding that will maintain,” • “Why Should I Vote for Measure 99,” • “The District seeks funds to improve equipment and buildings,”
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The remaining text of the publication does not cancel out such a statement. That is, a document that is otherwise totally factual, balanced and neutral, yet includes a sentence such as the ones above, would most likely result in our determination of a violation of state law.
Another caution is to not include wording such as, “a Yes vote means…” unless “a No vote means…” is also included and both are balanced and impartial.
c) The balance of factual information and whether any negative (or positive) facts are mentioned at all. This does not necessarily mean an equal number of facts on either “side” must be mentioned. Documents about ballot measures published by public governing bodies should not be one-sided, but should fairly and impartially set out known advantages and disadvantages of a proposal. The information should reasonably explain the full scope of the measure and not concentrate only on certain aspects of the measure.
When the information is specific as to what the funds would be used for, it is then appropriate to leave it up to the voters to decide if they want to obtain the benefits by authorizing the additional tax increases to pay for them. This type of explanation of costs involved and how funds would be used is considered factual information and adds a balance to the information.
Impartial ballot measure information should be a comprehensive description of what the measure would do, and not be only a selection of aspects that may be viewed as more advantageous to discuss.
If a measure proposes to affect taxes or fees the following types of information should be included:
• The specific cost of the measure to an individual taxpayer or consumer; • If appropriate, the amount of yearly taxes based on the average price of a home in that community. (The “average price” should be
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 22 of 103 a realistic figure for that community – too low a figure could result in a misleading estimate biased in favor of the measure. Also, although a monthly cost amount may be included, a yearly amount more importantly needs to be included); • Clarification on whether it is an increase in current taxes ; • Clarification on whether the amount is an estimate ; • If appropriate, the number of years of the bond ; • Reference for bond levy calculations and whether the calculations are fixed or may have future increases; and • In cases where there is an overall cost , the total amount should be included (for instance the total amount of a bond). Ideally, this should include principal and interest for the total cost.
Additionally, the cost should not be worded in a way to minimize it (such as “less than or only $5.00 per month” or “It’s merely the cost of a paperback a month”).
An example of advisable language explaining a measure’s effect on taxes is, “Measure 37-88 proposes a 3.5 million dollar twenty year bond and passage of this measure would result in an increase in property taxes of $1.25 per year per $1,000 of assessed value. For the average homeowner in Everyday City with a home assessed at $150,000, the annual property tax increase would be $200.”
Another way to achieve balance in impartial measure information is to include any other known, feasible options , even those that may be considered unfavorable to the public agency. However, these options must be impartially presented and not described in a way to imply they are totally unacceptable. These options should not be presented solely in order to be criticized. Source information should be included for the reader to verify the information and to learn more if desires.
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d) The overall impression a reader gets after reading the material should be an impression that neutral facts have been presented. The impression should be that the material is being presented to inform the voter rather than persuade them. Information that is only speculative should not be included, as it tends to be persuasive. We advise steering away form theoretical, subjective and opinionated content. Rather, the material should be specific, descriptive and objective.
For example, the following speculative statements are inadvisable,
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 23 of 103 “Having modern computer software available will result in greatly enhanced test scores, improved attendance, faster learning of new skills, a lower drop-out rate, and an increase in college and training school attendance.” Unless the document provides some sources and substantiation for these speculative statements, we advise they lend too much enthusiasm and persuasiveness to the information.
Whenever appropriate, we advise the inclusion of citations to source information , such as specific case studies. Statements such as “District Schools are overcrowded,” need a basis either included or referred to. ***.
Additionally, we advise caution when including comparisons (listing pro and cons for a measure) and purporting to speak on both support and opposition sides. Any such formatted information should be impartial and as inclusive as possible.
e) The tone of the publication should be dispassionate rather than enthusiastic for one side of the measure and not argumentative or persuasive. The material should not include only statements regarding the possible favorable (or unfavorable) effects that passage of the measure would have. The public may perceive information as persuasive or threatening if it presents dire consequences that are bound to elicit strong public response. For example, information that a “levy would allow the program to continue” is a more neutral statement than saying “failure of the measure will destroy the program.”
The information should be a description of what the measure does, an unbiased statement of objective fact, not a justification of why the measure is needed. Additionally, we advise avoiding glowing commentary on the jurisdiction that would benefit from a measure’s passage, as this lends a tone of “We are great so you should support this measure…” to the information.
f) Documents should not be personalized or use personalizing pronouns. We advise against providing information about a measure in a personalized format, such as a letter format addressed to “Dear Parents,” customized for each area, and then signed by a public official. Rather, to ensure the neutrality of information about a ballot measure offered by a governing body, the information should be generic. A signed letter from a public official, who may be personally known by most constituents receiving the information, may evoke more empathy, enthusiasm and emotion than a generic fact sheet on a ballot measure.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 24 of 103 Additionally, such information should be made available to all voters in the jurisdiction, not just to certain constituents.
Along these lines, we advise that the use of personal pronouns, such as “our,” “we,” “I,” “us,” etc., lend a tone of “we are in this together” to a document and personalizes it, rather than the neutrality needed in an impartial informational document about a ballot measure. Therefore, we suggest that such words be changed to less personal words, such as “the,” “it,” “the district,” “the board,” “voters,” “taxpayers” or “constituents.”
Finally, rather than terms such as “neighbors,” “friends,” or “patrons,” we advise more using neutral terms such as “voters,” “taxpayers” or “constituents.”
g) Documents should not, in most contexts, use the word “will” in describing the results of passage of the measure. The word “would” is a better alternative, as it suggests that voters have a choice and the issue is not yet decided. The use of the word “will” suggests a desired outcome of passage of the measure and that it is set to happen. There may be other wording that should be changed for the same reason, such as “The measure provides a new source of income.” In this case, a suggested alternative is, “The measure would provide a new source of income.”
We note that in some cases, the use of the word “will” is appropriate based on the context – if it is not dependent on the measure’s passage (such as “The election will be held on May 20, 2008” ).
h) Documents should not, in most contexts, use the word “need” in describing the purpose of the measure. Often times the word “need(s)” is more emotionally charged and can be interpreted to be a favorable statement about the measure. It has an element of urgency that is not appropriate in a factual, neutral piece. Basic facts about a measure should be offered, so that the voters may make their own assessment of what is “needed.”
i) Headings, lead lines and other words or phrases should not lend a positive (or negative) tone to the material, in favor or opposition to the ballot measure. This also applies to the usage of positive or negative connotations given by words or phrases. An informational publication should not be emotional, enthusiastic or persuasive. Adjectives should not be value laden or add a persuasive tone , such as “urgent, critical, important, dire…” Another inadvisable word is “cut(s).” This word has a more raw
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 25 of 103 and emotional tone to it and should be replaced by a more neutral word such as reduction, eliminate, etc. The cumulative effect of individual word choices in the context of the entire publication must be considered.
Along these lines, there are words that when used once, may not be problematic; however used several times in a document may add to a persuasive tone. An example of this is the use of the word “excellence,” such as in “To ensure continued excellence,…” Repeated use adds a promotional tone. A suggested alternative is, “To maintain existing levels of performance,…” This omits the positive characterization involved by the word “excellence.” Other examples that should not be repeated in an impartial measure document are, “approved” and emotional phrases such as “we’d be proud to serve,” “we pledge to you,” and “can be assured.”
Another recommendation to enhance neutrality is to keep a more formal tone, rather than a conversational, colloquial tone. For example, instead of stating, “This would assist our kids in…” we suggest, “This would assist students in…” (Based on recommendations in factor F above, note that the personal pronoun “our” is also omitted.)
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j) Quotes about the measure should not be included. Likewise, lists of members of a political committee or others supporting or opposing the measure should not be included. This holds true even if a quote is from a government body’s elected official. The use of such quotes and lists indicate an endorsement similar to campaign advocacy material and is, therefore, inappropriate.
Additionally, it is not allowable for a public agency to incorporate political advocacy material just because it has been previously published by a private entity, such as a newspaper. Again, it is imperative that publications produced and distributed by public employees be impartial, informational documents, regardless of who prepared the material.
k) The use of graphics, checkmarks, formatting and photographs. Checkmarks are often used as an indicator of what someone should do, and have a very positive implication. Checkmarks are also used in informal ballots and surveys that people complete by checking to indicate their choices. Therefore, we advise against the use of checkmarks in material about ballot measures produced by a government entity because the use of
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 26 of 103 checkmarks significantly contributes to an effect of advocacy. For the same reason, we advise against the use of positive graphics (such as a hand placing a ballot in a ballot box or a pencil marking an X in a box) in material about ballot measures produced by a government entity.
Additionally, caution should be used in formatting. Extensive formatting methods that serve to emphasize or de-emphasize certain information may result in a persuasive tone (such as the use of all caps, underlining, bolding, making some information (such as cost) in much smaller print, stars around wording, etc.).
Along the same lines, photographs used in a document should not be overly emotional. In an informational document it is important that photographs do not add to a tone of advocacy. Plain text without pictures lessens the likelihood that readers feel they are being persuaded to empathize with the depicted situation and thus to support or oppose the measure.
l) The use of phrases similar to campaign slogans. Informational documents should not contain phrases that do not serve to present any factual information, but rather are a sort of motto, logo or catch phrase; in a way a “rallying cry.” Some examples might be, “Help plan for the future,” “Planning for our Future, Improving the Community,” or “Our schools are an intelligent investment.” These phrases are not impartial and informational, but are advocacy.
Another instance might be a “mission statement,” which may, dependent on the wording, serve to affect the tone of the information. This could be the case if it results in a very positive commentary on the jurisdiction that would benefit from a measure’s passage, lending a tone of “we are wonderful so you should support this measure…”
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m) Information about how to contact the supporting or opposing political committee (PAC), such as listing the PAC’s phone number, may imply a connection between the governing body and the petitioners or supporters of the measure. However, if all PAC’s are listed, for both sides, it may lent to the balance of the document.
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In the Matter of Sarah Ames , OAH Case No. 1102579 Page 27 of 103 n) Reporting of an elected official’s position on a ballot measure or an elected official’s article advocating a position on a measure should not be included in a publication using public employee work time. A publication produced using public employee time may only include facts about a ballot measure, not who supports or opposes the measure. Such inclusion would lend an implication of “I/we support/oppose this measure and so should you…”
For example, do not include, “The Anywhere School Board position on Measure 46-89: Oppose” or the text from the resolution that advocates for or against a measure. In very limited circumstances, there may be an exception: if the jurisdiction has a history of listing all resolutions and action items at a board meeting in a regularly published format and the advocating resolution is listed in an impartial manner. In any case, it is not advisable to include any text from the resolution that advocates for or against a ballot measure.
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o) Information about the “50% voter turnout requirement.” In 1997, Ballot Measure 50 was passed, amending the state constitution. The Constitution (Article XI, Sec. 11) now requires that the passage of a measure to approve new or additional ad valorem property tax levies be obtained at an election where the number of electors casting a ballot is not less than 50% “of the registered voters eligible to vote on the question.” This requirement applies for every election except for the general election during an even numbered year.
It has become common for governing bodies to include some information about this requirement in their publications about ballot measures. It is not considered advocacy to include strictly neutral, factual information about this requirement. Encouraging people to vote is an accepted practice of election officials and other public officials; however, that is different than encouraging passing a measure. The concern here is that this information should not be worded in such a way that it persuades voters that they must vote for the measure “now.” ***.
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Some suggested, acceptable language for this requirement is:
* For this local option tax levy measure to be enacted, it must
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 28 of 103 receive a majority of the votes case and voter turnout must be at least 50% of the registered voters in the district ( or county, city …) or 50% of the eligible voters.”
(Ex. A1; emphasis in original.)
27. The Manual was written to provide the reader with guidance on how the provisions of ORS 260.432(1) and (2) apply to pubic employees, public employers and elected officials. The information in the Manual is to be used as a reference or starting point rather than a comprehensive list of all activities that could fall under the statute. (Ex. A1 at 5.)
28. The Manual is not a promulgated rule. The fifteen factors (the Factors) set forth in the Manual are not promulgated rules. (Ex. A1.)
Ms. Corbin’s review of the documents
29. On or about April 26, 2011, Ms. Corbin sat down and reviewed the documents received from PPS. Using the Manual, Ms. Corbin went through each document and highlighted (using a yellow highlighter) words, phrases, titles, graphs and pictures that she believed violated the Factors contained in the Manual. In general, Ms. Corbin found as follows:
• If the document did not include the average cost, it was found in violation. • If the document used personal pronouns, it was found in violation. • If the document used the word “need,” it was found in violation. • If the document used the word “will,” it was found in violation. • If the document emphasized titles, words, or phrases, it was found in violation. • If the document was formatted (bold), it was found in violation. • If the document was written as a letter, it was found in violation. • If the document used words like “safety,” or “security,” it was found in violation. • If the document contained justification for the measure or levy, it was found in violation. • If the document contained pictures or graphs, it was found in violation. • If the document was persuasive, it was found in violation. • If the document did not cite to a source, it was found in violation.
(Test. of Cox; Exs. A1, C1, D, F.)
30. On April 26, 2011, Ms. Corbin prepared an Investigator’s Report regarding the allegations against PPS, which stated, in material part:
1/6/11 Portland Public Schools filed Ballot Measure 26- 121 with Multnomah County.
2/18/11 PPS filed Ballot Measure 26-122 with Multnomah County.
4/4/11 Received request from PPS to review document.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 29 of 103 Review included multiple changes:
Rewrite to make statements more impartial. (Factors A, E, I)
Cite sources. (Factor D)
Include the total cost per year for the average house in the District. (Factor C)
4/7/11 Interviewed by Oregonian reporter re: PPS publications. When asked if a document was impartial if it did not include the total annual cost per $1,000 per average house in the district, I stated without this information a document published by public employees would not be impartial.
4/8/11 Received complaint from Eric Fruits. Complaint alleges PPS does not include interest costs in publications about Ballot Measures 26-121 and 26- 122, is it legal or proper for the publication to be funded by ViDA a program receiving federal funds.
Sent letter acknowledging receipt of complaint and requesting the publications produced by PPS about the ballot measures, the names and titles of the public employees involved and the individuals ultimately responsible for the materials.
4/12/11 Received complaint from Richard Ellmyer. Complaint alleges PPS used median rather than average cost per house in the district. Asks this office to rule on the statement that clearly states the yearly tax increase for the average homeowner – median only, average only or median and average.
4/14/11 Receive request from PPS to review document. Review included multiple changes:
Cite source. (Factor D)
Cite source or rewrite to make statements more impartial. (Factors A, D, E, I)
Provide the cost per average house in the district. (Factor C)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 30 of 103 4/19/11 Received complaint from Nathan Dahlin. Complaint alleges publications produced by PPS were not written in an impartial manner, may be advocacy and intended to sway public opinion on the measure in violation of ORS 260.432.
4/22/11 Received complaint from Jeff Reynolds. Complaint alleges several communications produced by PPS employees support Ballot Measure 26-121 in violation of ORS 260.432.
Received response from PPS.
Received complaint from William Schneider, DC alleges document produced by PPS may violate ORS 260.432. (This is the same document I reviewed April 4, 2011.)
4/26/11 Reviewed documents published by PPS after the measures were certified with Multnomah County. All have similar impartiality issues as the documents reviewed on 4/4 and 4/14.
Cite source. (Factor D)
Cite source or rewrite. (Factors C, D, E, I)
Provide the cost per average house in the district. (Factor C)
Also:
The timing of the documents is relative to the elections. (Factor A)
Headings similar to campaign slogans or logos. (Factors I, L)
Use of personal pronouns gives the document the tone of “we are in this together.” (Factor F)
The documents do not provide balanced information as they include a selection of the more advantageous aspects. (Factor C)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 31 of 103 Speculative information is persuasive. (Factor D)
Tone of documents are enthusiastic and emotional rather than dispassionate. (Factor E)
Use of the word “will” or statements in the current tense rather than using “would” when referring to the results of the measures. (Factor F)
Use of the word “need” gives the statement an element of urgency. (Factor H)
Use of “critical” is emotional and persuasive. (Factor D)
Formatting (bold) to draw attention to a statement. (Factor K)
Pictures to draw attention to document. (Factor K)
Reporting of an elected official’s position on the ballot measures. (Factor J)
Conclusion:
All of the reviewed documents fail to meet the required factors published in the Restrictions Manual to be an impartial document thereby supporting the passage of Ballot Measures 26-121 and 26-122. By producing, publishing, distributing and/or posting these documents, PPS employees violated ORS 260.432.
A review of the ballot title and explanatory statements finds the same issues as with the other documents reviewed.
(Ex. D1 at 1-3; emphasis in original.)
31. On May 5, 2010, Mr. Cowie sent an email to Ms. Corbin, which stated, in relevant part:
A recent story in The Oregonian indicated that additional complaints had been filed regarding the informational materials we have distributed about our proposed bond.
I did not know that further complaints had come in beyond Mr. Fruits’ original one, which you shared with us when it was filed. I
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 32 of 103 would appreciate it if you could share the additional complaints with us as well.
The Oregonian article also indicated that you have concluded your initial review. If so, we trust that there will be an opportunity for us to provide further information and context in response to these complaints before a final decision is reached.
Portland Public Schools is represented Jollee Patterson, our in- house General Counsel, as well as Jeff Condit, of Miller Nash LLP, as outside counsel. As you know from the cover letter we sent which accompanied the materials you requested, they reviewed and approved all the major informational materials we have distributed.
If you or the Attorney General have any concerns, they request an opportunity to discuss and fully brief those concerns, prior to a final decision on these complaints.
(Ex. 2 at 1.)
32. On May 6, 2011, Ms. Corbin provided Mr. Cowie with copies of the additional complaints made against PPS. (Ex. 2 at 2.)
33. On May 10, 2011, Ms. Patterson sent an email to Ms. Corbin, which stated, in material part:
Dear Ms. Corbin – thank you for forwarding the additional complaints that have been filed regarding the PPS information materials. Before your office issues a determination, we would like an opportunity to provide information about the internal review process and considerations that PPS took into account in preparing the materials, in light of the statutory requirements, the Secretary of State guidelines, and applicable case law. We can provide this to you by the end of the week.
(Ex. 2 at 2.)
34. On May 10, 2011, Ms. Corbin sent a letter to Ames and Essick, among others, requesting that they provide additional information about their individual contributions to the documents referred to in Mr. Fruits’ complaint. (Exs. 6, E1-E6.)
35. The election was held on May 17, 2011. (Ex. A3 at 1-10.)
36. On May 18, 2011, Ames sent a letter to Ms. Corbin, which stated, in pertinent part:
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 33 of 103 My understanding is that Mr. Fruits’ complaint referred to an article in The Oregonian by Betsy Hammond that in turn referred to a number of district produced documents. Therefore, it is not entirely clear to me which specific documents you are referring to when you ask for more information about the role I played in the development of the documents. I am happy, however, to provide general information about my activities and participation in the district’s communications about the bond measure and local option levy.
As public affairs director, I was a point-person for many of the documents about the ballot measures. As such, I drafted some documents, edited others, directed the graphic design or publication/posting of many and asked for legal review of the language and layout prior to final production and distribution. This work was part of my job duties and I performed these duties during work hours. Again, my specific role and interaction with the rest of the PPS staff and legal counsel varied from document to document. I could describe my specific role if you are interested in any individual document.
You also request any other information I consider relevant to the complaint. I am not sure what type of information you are interested in, but I am aware that Robb Cowie provided some background in his letter of April 20, 2011. I would be happy to answer any other questions you might have if that information did not satisfy your concerns. I am also aware that additional complaints have been filed, but because your letter refers only to the complaint from Mr. Fruits, I am assuming there will be another opportunity to provide background on other documents if your office is pursuing those complaints. Please let me know if that is not the case.
(Ex. E1.)
37. On May 19, 2011, Essick sent a letter to Ms. Corbin, which stated, in relevant part:
My understanding is that Mr. Fruits’ complaint referred to an article in The Oregonian by Betsy Hammond that in turn referenced a number of district-produced documents. It is not entirely clear to me what specific documents you are referring to when you ask for more information about the role I played in the development of the documents. I am happy, however, to provide general information about my activities and participation in the district’s communications about the bond measure and local option levy.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 34 of 103 I had a role in editing and posting at least some of the informational materials produced by the district regarding the bond measure and local options levy. This work was part of my job duties, and I performed these duties during work hours.
You also request any other information I consider relevant to the complaint. I am not sure what type of information you are interested in, but I am aware that Robb Cowie provided some background in his letter of April 20, 2011. I would be happy to answer any other questions you might have if that information did not satisfy your concerns. I am also aware that additional complaints have been filed, but since your letter only refers to the complaint from Mr. Fruits, I am assuming there will be another opportunity to provide background on other documents if your office is pursuing those complaints.
(Ex. E3.)
38. On or about August 25, 2011, the Division issued Notices of Violation against eleven PPS employees, including Ames, Essick, Garcia and Martin. 10 (Exs. 2 at 4-7, 4 at 1.)
39. On September 9, 2011, Ames sent an email to Stephen Trout, Director of Elections, requesting an extension of time to request a hearing. (Ex. 2 at 4.)
40. On September 27, 2011, Essick and Garcia met with Ms. Corbin and Mr. Trout to discuss the Notices of Violation. Essick and Garcia explained their individual roles in the preparation of the PPS documents. Ms. Corbin told Essick that every page of the PPS documents was in violation of the statute, and just by touching the materials Essick was in violation of the statute. (Test. of Essick.)
41. On October 5, 2011, Ames sent a letter to Mr. Trout, which stated, in relevant part:
I appreciate that your office has extended additional time to the PPS employees found in violation of ORS 260.432 so that we may consider whether to ask for a hearing on the matter.
As I noted in my earlier e-mail it would be helpful to me to have greater information on the specific violations – both so that I may decide whether to pursue a hearing, and also so that I (and other public employees seeking to follow the law in the future) may have greater clarity.
It would be helpful to me to know which documents were found in
10 At hearing, the Division asserted that the Notices of Violation were issued based upon Ms. Corbin’s marked up version of Exhibit C1 that was completed in April 2011.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 35 of 103 violation, based on the cited factors in the Investigator’s Report. I have categorized my questions about the findings into three categories, based on how specific the findings are:
Citations for findings about particular phrases or terms specified in the Guidelines:
Use of personal pronouns gives the document the tone of “we are in this together.” (Factor F) Which document(s) include personal pronouns that were in violation? (Page numbers from Exhibit C1 would be answer enough; I can find the pronouns.)
Use of the word “will” or statements in the current tense rather than using “would” when referring to the results of the measures. (Factor F) This is Factor G. Which document(s) used the present tense?
Use of the word “need” gives the statement an element of urgency. (Factor H) Which document(s) included the word “need”?
Use of “critical” is emotional and persuasive. (Factor D) Which document(s) included the word “critical”?
Reporting of an elected official’s position on the ballot measures. (Factor J) Which document(s) reported an elected official’s position?
Findings of formatting and layout where I could use more specific guidance:
Headings similar to campaign slogans or logos. (Factors I, L) Formatting (bold) to draw attention to a statement. (Factor K) Pictures to draw attention to document. (Factor K) Every document has a headline, and many have subheads. Which headings did you find were similar to campaign slogans or logos, and why? It would also be helpful to find out which of the formatting decisions and which photos you determined tipped the materials toward advocacy. These materials were all professionally designed to encourage readership. Where in your judgment does drawing attention to a document through use of headings, design
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 36 of 103 and layout cross into inappropriate and illegal advocacy for a particular position?
Broad findings:
The timing of the documents is relative to the election. (Factor A) Does this apply to all documents or a few? Can you say which ones?
Speculative information is persuasive. (Factor D) The documents do not provide balanced information as they include a selection of the more advantageous aspects. (Factor C) Tone of documents are enthusiastic and emotional rather than dispassionate. (Factor E) I understand from other PPS staff who[sic] have met with you that many of these general findings – which apply to many documents – stem from the language that was included on the ballot. I have heard that use of the word “safety,” as well as the lack of a statement of the annual cost to an “average” homeowner were consistent violations, under your findings. Is that true? Are there other pervasive phrases or terms that led to these findings?
I understand that Ms. Corbin, in the course of her investigation, marked up a copy of the documents included in Exhibit C1. Perhaps a simple copy of that annotated exhibit would offer sufficient answer to most of the questions above. If you would make that available, I could pick it up at your office in Salem within a day or two.
Thank you for offering to answer my questions about the specifics of your findings. I hope that these answers are easily attained in your public records; I do not intend for them to require a great deal of further work on your or Ms. Corbin’s part.
I ran virtually every draft I worked on by legal counsel for review before publication, and endeavored to follow the law to the best of my ability (I was responsible for many, but not all, of these documents). The further information you provide will help me – and other public employees in the future – understand the law and your interpretation to a greater extent moving forward.
(Ex. 2 at 5-7; emphasis in original.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 37 of 103 42. On October 13, 2011, Mr. Trout sent Ames the following email regarding her request for a marked copy of Exhibit C1:
It will be sometime next week. There are dozens of documents to go through and mark. 11
(Ex. 2 at 9.)
43. On October 17, 2011, Ms. Corbin reviewed the documents received from PPS for a second time. Using the Manual, Ms. Corbin went through each document and highlighted words, phrases, titles, graphs and pictures that she believed violated the Factors contained in the Manual. (Ex. 15.)
44. On October 19, 2011, Mr. Trout sent an email to Ames indicating that the documents were ready and available for mailing or pick up. (Ex. 2 at 8.)
45. On or about October 20, 2011, Ames received a copy of the second marked up version of Exhibit C1. Attached to the exhibit was a letter dated October 17, 2012 from Ms. Corbin, which stated, in pertinent part:
Dear Ms. Ames:
Your letter dated October 5, 2011 was forwarded to me for response. The documents I reviewed while investigating the complaints against Portland Public School employees are enclosed. The highlighted items do not meet the factors required to be an impartial document produced by public employees about ballot measures.
The documents are labeled with an exhibit number. To assist you in reviewing these documents a list of the factors is also enclosed. The list of factors is the document utilized to determine whether the documents produced by PPS employee[s] were impartial.
(Exs. 2 at 8, 15 at 1; emphasis added.) The October 2011 version of Exhibit C1 differed in many respects from the April 2011 version of Exhibit C1. (Test. of Ames; Exs. 15, 16, F.)
46. On October 25, 2011, Ames requested a hearing to contest the Notice of Violation. (Request for hearing .)
47. On October 25, 2011, Superintendent Smith, Ms. Patterson, C.J. Sylvester and Mr. Cowie wrote a letter to Mr. Trout, which stated, in material part:
11 Because the Division did not have the equipment to copy Ms. Corbin’s “marked up” version of Exhibit C1, Ms. Corbin went through and “marked up” a second version of Exhibit C1. (Test. of Cox.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 38 of 103 We are writing in regards to the finding of violation of the election guidelines that your office issued against eleven Portland Public School employees, and the $75 fine that was assessed against eight of us. The four of us have individually decided that we will pay the fine, but we wanted to take this opportunity to clarify that payment of the fine does not mean that we agree with the finding of violation. Rather, as senior representatives of the school district, we would like to pursue our concerns via the rule-making process, so that public officials can count on greater clarity and consistency in applying the guidelines in the future. We are aware that other individual Portland Public Schools employees may pursue a formal administrative appeal, and we fully support them.
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The following are our major concerns:
• We believe that the “factors” contained in the guidance documents from your office should be codified into formal administrative regulations through the rule-making process. The current guideline have not undergone formal review, which creates uncertainty and inconsistency in their enforcement (e.g., In the Matter of Maiocco and Smith , OAH Case Nos. 1001511 and 1001512, April 2010 in which an Elections Division finding against employees of the Hermiston school district was vacated because an administrative law judge found that the guidelines are unpromulgated rules). We also believe that some of your office’s current interpretation of the statute is overly broad in terms of prohibited language. For instance, we do not believe the statute supports the conclusion that use of the word “safety” in informational materials related to a ballot measure always implies that safety is being “guaranteed” and thus cannot be used without violating the law.
• We are concerned about the inconsistency of the Division’s interpretation of the guidelines over time. For example, in a recent meeting, PPS staff were informed that the Elections Division interprets the statute to mean that every employee who in any way interacts with a document (such as copying, loading on a web site, etc.) can be held individually responsible for violating the law, even if they had no authority over the content and in fact may not have even read it. This is different from our understanding in the past. We believe this is an overly broad interpretation of the law, and puts employees with no authority whatsoever over the content with being found an individual violator. We understand that under some circumstances, employees who engage in only “ministerial”
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 39 of 103 tasks may have the fine waived, but they will still be found in violation of the law. We look forward to addressing this through the rule making process.
• Finally, we have concerns about the process once a complaint is made against the school district. For instance, we were not informed about complaints as they were received, staff were not provided with an opportunity to have a hearing before the Division reached a conclusion despite repeated requests, and staff have not been provided any specific guidance on which passages in publications the Division found to be in violation of the guidelines. We believe that before individual public employees are found to be in violation of the law and issued a personal fine, there should be greater opportunities for due process. We understand that the administrative appeals process is available, but that is only after a finding of violation. We also believe there should be explicit appeal rights for those employees who were found in violation of the law, even if the fine was waived. It has been understandably very disturbing to our staff employees that they were found to be in violation of the law, but had no hearing before the fact and no access to an appeal after the fact.
(Ex. 4.)
48. On or about October 26, 2011, the Division notified Garcia and Martin that they had not violated ORS 260.432. (Ex. 9.)
49. On November 9, 2011, Essick sent a letter to Mr. Trout, which stated, in relevant part:
I am writing to request that you withdraw your finding against me in Case No. 11-102-KE.
On October 26, 2011, you sent letters to two of my colleagues, Francisco Garcia and Richard Martin. In those letters, you said you had determined they did not violate ORS 260.432 as they had been told in a letter dated August 25, 2011.
In your August findings, you found Mr. Garcia and Mr. Martin in violation but did not fine them because you said they had been performing clerical duties. You found me in violation and fined me, I believe, because you determined that I had performed a higher-level role.
Following is the role that I played – as directed by my supervisor:
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 40 of 103 • I proof read text for the annual report, one page of which you found in violation (Exhibit C, Page 10). I tracked my suggestions (i.e., retained the original text but showed where I would make changes) and do not know if my supervisor accepted my recommendations. I did not see the report again until it had been published. • I checked the superintendent’s message and approved it as meeting our grammatical guidelines for the online newsletter PPS Pulse (Exhibit C, Page 79.) • I checked a paragraph about the election and approved it as meeting our grammatical guidelines for PPS Pulse (Exhibit C, Page 80).
Those three pages were the only ones of more than 100 in Exhibit C on which I laid my eyes. I was specifically told I did not have the authority to change anything without tracking my changes and then submitting the documents to my supervisor for review.
I feel that my situation was very similar to that of Mr. Garcia and Mr. Martin. Therefore, I request that you withdraw your finding and penalty against me.
(Ex. 9.) On or by November 9, 2011, Essick reviewed a “marked up” version of Exhibit C1. 12 (Ex. 9.)
50. In December 2011, Ms. Corbin retired from the Division. 13 (Test. of Cox.)
Relevant documents 14
51. On December 8, 2010, a document entitled “Frequently Asked Questions: The PPS School Modernization Proposal” was posted on the PPS website. The document provided, in pertinent part:
1. How big is Portland Public Schools?
Portland Public Schools is the largest school district in Oregon with roughly 47,000 students in 85 schools, including neighborhood and focus schools, in addition to charters, alternatives and special programs. Portland Public Schools is the second largest property owner in the city and one of the region’s largest employers with more than 6,000 teachers and school
12 It is unclear from the record whether Essick reviewed the first or second version of Exhibit C1. 13 Ms. Corbin did not appear at the contested case hearing to provide testimony regarding her actions in this matter. (Hearing record.) 14 The documents that were marked up by Ms. Corbin and found in violation are set forth in material part and incorporated fully by reference. (Exs. C, F.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 41 of 103 support staff.
2. How old are the school buildings?
The average age of PPS schools is 65 years old. Most were built either in the 1920s or just after World War II. Only two schools have been built in the last 40 years (Rosa Parks Elementary in North Portland and Forest Park K-8 in Northwest). While PPS has added computers and other technology to schools, and has addressed some of the most urgent building needs – such as earthquake safety and roof replacement – our school buildings have never been fully updated.
3. Why is Superintendent Carole Smith proposing a bond measure?
PPS students do not have the same up-to-date classroom equipment, technology and other modern learning spaces as students in the neighboring school districts with newer buildings.
PPS school buildings have never been fully updated. The buildings have worn out with leaking roofs and drafty windows; energy-inefficient and antiquated heating, ventilation and plumbing systems; overtaxed electrical systems with few outlets and outdated safety systems.
A bond will provide dedicated money to address these needs and provide student and teachers with modernized schools. Without a bond, Portland Public Schools must continue to use scarce operating dollars for the most urgent building needs.
4. What will the proposed school building bond buy?
All 85 schools will receive one-time student safety, security and building system updates, such as: replacing roofs, updating boilers, improving accessibility for disabled students and adults, and increasing student safety and security by installing new fire alarm systems, making seismic upgrades and providing secure access at entryways.
All schools will receive updates to classroom learning environments and updated teaching technology. Every K-8 and middle school (37 schools) will have an upgraded science lab, and 33 elementary and K-8 schools will have covered playground areas for outdoor physical education and recreational use. Six high schools not being rebuilt will have classroom updates to support
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 42 of 103 rigorous teaching and learning, and will receive updates to their sites, such as landscaping, seed money for field upgrades, lighting, signage, walkways and renovated entrances.
Schools across the city with high-priority needs – out-dated educational environments and safety and structural concerns – will be rebuilt. Three high schools and five elementary and K-8 schools will be rebuilt and modernized, so PPS students have the same technology, equipment and up-to-date learning environments as students in neighboring school districts with newer buildings. The schools are Cleveland, Jefferson and Roosevelt high schools, and Faubion, Laurelhurst, Markham, Marysville and Rigler elementary and K-8 schools. In addition, Lincoln will undergo comprehensive planning and design to prepare it for rebuilding in the next voter-approved bond.
To lower costs and save taxpayer funds, debt will be retired on funds borrowed to complete Rosa Parks School and the nine school roofing projects completed in 2009 that included seismic upgrades and solar energy collection.
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9. What will the initial proposed construction bond cost me?
This bond will raise $548 million for classroom, safety and security improvements at every school in the district over six years. The typical homeowner would pay about $300 a year, or about $25 per month.
The proposed bond’s rate – approximately $2 per $1,000 of taxable assessed value – is in the middle of the rates voters approved in neighboring school districts, which range from about $1 to over $4 in some school districts.
Portland Metro Area School Districts FACILITIES BOND RATE Gladstone $4.54 Sherwood $4.07 Forest Grove $3.53 West Linn-Wilsonville $2.97 Riverdale $2.85 Hillsboro $2.61 Corbett $2.55 Canby $2.31 Oregon Trail $2.27
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 43 of 103 Centennial $2.26 Beaverton $2.09 North Clackamas $2.08 David Douglas $1.61 Oregon City $1.41 Tigard-Tualatin $1.38 Reynolds $1.13 Parkrose $1.08 Gresham Barlow $1.06 Lake Oswego $1.04 Portland Public Schools $0.00 AVERAGE $2.25
The median home in the Portland Public Schools district is worth $277,700 (Real Market Value) and is taxed at a value of $147,500 (Taxable Assessed Value). Half of the homes are worth more, half less. To calculate your own cost, multiply the Taxable Assessed Value (TAV) on your bill by $2 and then divide by 1,000. That’s the approximate annual rate; if you pay monthly escrow, divide by 12 for your monthly cost.
Portland Public Schools’ taxes are just over a quarter of local property tax bills, 27 percent. Although overall property tax rates are higher in Portland than in surrounding areas, which is due to other government authorities’ tax rates, as school property taxes are lower. In general, an estimated $2 increase in the PPS tax rate would lead to a 9 percent increase in taxpayer’s overall rate.
10. How many jobs will this create and will you use local labor?
School rebuilding programs have a direct and significant impact on the local economy – in increasing neighborhood property values, revitalizing neighborhoods, and in jobs created during design and construction.
Portland Public Schools’ proposed school modernization bond would add a net 2,66 jobs in the Portland region and $222 million in personal income over the six-year construction time-period, according to an analysis by a local economic consultant firm.
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The school building projects would directly create more than 3,700 jobs, in construction, design and manufacturing industries, with further jobs created under the indirect or “induced” impacts of the
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 44 of 103 bond work. ***.
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PPS will use local labor, include apprenticeship opportunities and implement a robust procurement process to make sure that underrepresented groups – particularly minorities – benefit from this major public works program.
11. When will my school be rebuilt? It will cost too much to rebuild all the schools. How can we sustain funding for this program over 20 to 30 years?
We know that every PPS school building needs work. That is why the bond will offer every school both updates to learning environments and one-time updates to safety and school building systems. These are interim updates – we plan to complete rebuilding all of our high schools within 18 years, and every PPS school within 30 years. More than 40 percent of PPS students live in the attendance area of the first high schools to be rebuilt under the long-range program: Cleveland, Jefferson, Roosevelt and Lincoln.
PPS has developed a primarily pay-as-you-go funding program. These school repairs and rebuilding will be almost completely paid for when they are completed in the first six years. Instead of 20- year bonds, most of our funding is short-term. That saves more than $200 million in interest payments alone.
When a subsequent 6-year bond is proposed, it will not be added on top of the first because it will be nearly paid off. Rather, with voter approval, PPS takes on another chunk of school rebuilding at the same or even a lower rate depending on population growth. It is a practical, fiscally responsible and sustainable plan.
12. Why is the proposed bond this size?
PPS is the biggest school district in the state, serving 47,000 students, employing more than 6,000 teachers and school support staff, and covering some 100 city neighborhoods. The proposed bond is appropriate for our size. The tax rate of approximately $2 per $1,000 is comparable or less than many of our neighboring districts with newer school buildings (see table above). We need to make sure our students can compete for college and jobs with those who attend newer facilities.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 45 of 103 13. How did you choose the first schools to rebuild?
Portland Public Schools will not take on more than can be effectively managed and accountably overseen, and used the following main factors to propose the first-phase schools:
• Providing rebuilt schools for as many students as possible, particularly at the grade levels where the educational environment is most outdated compared to neighboring school districts. This led to a focus on high schools. • Addressing school buildings with higher need because of their condition or configuration. As an indicator of a school’s age and level of disrepair, the Facilities Condition Index (FCI) estimates the cost of addressing deficiencies against the cost of full renovation, with higher index numbers indicating high need. The configuration is also important, as some schools are less suitable for today’s teaching and learning practices as a result of crowded classrooms or poorly configured learning spaces. • Renovating schools in each part of the school district. Geographic diversity provides balance and equity, and helps ensure that “swing space” closer to the home school is used while students are displaced by construction.
There is no simple mathematical calculation; these factors were balanced in the decision-making.
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16. How will this affect school enrollment?
Other school districts’ experience shows that when schools are rebuilt enrollment increases. Children return to public schools from homeschooling [sic] or private schools, and new families move in. Seattle Public Schools, which has been steadily rebuilding its schools, saw a 1,000-student enrollment increase this year alone. Our rebuilt schools will be designed to be expanded over time to accommodate growth in our community in coming generations.
Updated schools also attract more families, helping property values.
17. Why are you rebuilding Jefferson? The school board almost closed it.
The school board has decided that Jefferson will not be a
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 46 of 103 comprehensive community school. Instead that school will house a new Middle College focus program together with Portland Community College (located immediately across the street).
Other cities across the country have seen great success by offering a Middle College option – a magnet school that offers students the chance to earn college credits while still enrolled in high school. Jefferson is the perfect location. The board and superintendent expect this will be an attractive option for students across the district, and for many of the 1,550 high school-age students who now live in the Jefferson area (three-quarters of them choose not to attend the current Jefferson program).
The Jefferson building as it stands – 101 years old – doesn’t offer a modern environment to support the Middle College program. The school will be rebuilt to house up to 700 students, with flexibility for future expansion if demand rises.
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19. Isn’t this recession a tough time to ask voters to approve a bond? My taxes are already high.
Portlanders are watching their budgets now, and this asks the typical homeowner to pay an additional $25 a month.
In tough times jobs and education are core priorities. This bond proposal helps on both fronts. Skilled and educated graduates are most likely to land jobs and keep working. Strong public schools increase property values in Portland’s neighborhoods and help attract new and growing businesses. Finally, this will be a significant public works effort, creating thousands of jobs in the hard-hit design and construction industries across Portland.
Portland Public Schools receives about 27 cents of every property tax dollar paid by PPS residents. The net rate for Portland Public Schools – the one that you see on your property tax bill – this year is $5.86 per $1,000. That’s more than a dollar below the average district rate in the metro area, which is almost $7.
Portland Metro Area School Districts NET DISTRICT TAX RATE West Linn-Wilsonville $8.91 Gladstone $8.90 Forest Grove $8.44 Sherwood $8.32
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 47 of 103 Riverdale $7.74 Hillsboro $7.58 Tigard-Tualatin $7.36 Corbett $7.14 Centennial $7.00 Beaverton $6.78 Oregon Trail $6.72 Lake Oswego $6.69 North Clackamas $6.58 Canby $6.58 Oregon City $6.21 Portland Public Schools (15 th ) $5.86 Parkrose $5.83 David Douglas $5.78 Gresham Barlow $5.59 Reynolds $5.35 AVERAGE $6.97
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25. Why doesn’t PPS just spread the bond money equally across all schools?
It is most cost-effective to coordinate renovations or rebuild a school building in a single construction phase rather than to patch building systems to keep them working a little bit longer. Mobilizing workers to many sites for smaller projects adds costs to the construction. Further, piece-meal repair of systems requires frequent disruption of classes and movement of teaching materials and equipment. Completing all necessary construction at one time and coordinating displacement of students saves money on temporary classroom space. The current proposal, as part of a longer range plan, is a practical, systematic way for PPS to renovate or rebuild all of our schools.
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28. What happens if the bond doesn’t pass?
PPS students and teachers will continue to learn and teach as best they can in old, dated facilities that require emergency repairs paid for from the district’s general fund. If the bond doesn’t pass, it will also put a tighter squeeze on the operations budget, as PPS will have to use General Fund dollars to pay off the construction debt for Rosa Parks Elementary School and the nine roof replacements that were completed in 2009.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 48 of 103 29. Why does every school get new stage rigging? Is that really a priority?
This is a safety issue. We have concerns that some of the lights and curtains in our schools stage areas may be unsafe. We will be inspecting each of our stage areas, and would like to replace stage rigging when needed. The bond provides funding to replace stage furnishings; otherwise we might be in the position of removing the old stage equipment for safety’s sake, meaning the stage itself would be far less useful for performances, classes and learning.
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30. What does it mean to “rebuild” a school? Will it be torn down, gutted?
A rebuilt school will be fully renovated – or in some cases, replaced – with structural, roofing, window and flooring, security, mechanical and full ADA accessibility upgrades. Classrooms and learning spaces will be redesigned for modern teaching practices and equipment, and technology will be upgraded throughout.
Each school will be designed with a community process, including input from teachers and schools staff as well as students and families. Many of our older buildings have significant historical character and are landmarks in the local community (a historical assessment of each building is posted online). We recognize the community will want to preserve special features of many buildings, even as the full updates are made. In some cases, the community design process may lead to greater opportunity through building a replacement building.
31. What are you doing for earthquake safety?
Seismic safety is a high priority for Portland Public Schools. The previous facilities bond – passed in 1995 – included more than $47 million of seismic safety improvement work at 53 schools. The nine school roof projects in 2009 also significantly increased seismic safety; roofs built to modern construction standards help stabilize the entire building.
This proposed bond continues that work, with 12 percent of the proposed funding dedicated to seismic safety. Full earthquake safety retrofits will occur at Marysville, Markham, Cleveland, Jefferson, Roosevelt, Laurelhurst, Rigler and Faubion, to current
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 49 of 103 seismic structural code. In addition, Beverly Cleary K-8’s Fernwood campus will receive seismic retrofit work, as the highest priority school building in our structural project category. In addition, 27 schools will have full or partial roofs replaced, which substantially increases earthquake safety as roofs built to modern standards help stabilize the structure. (PPS also has applied for a state grant for seismic upgrades to a wing of Alameda Elementary School, and expects to hear about that grant in January.)
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38. What is the proposal for West Sylvan Middle School now?
Superintendent Carole Smith proposed a facilities bond to update and improve safety in all PPS school buildings. Both before and after she made that proposal, Smith considered the challenges posed by having the West Sylvan Middle School sixth grade students in the East Sylvan building, rated the second worst in PPS for its facilities condition, and located more than a mile and across the Sunset Highway from the school’s seventh and eighth grade students. This leads to increased transportation costs, administrative inefficiencies and difficulty in coordination and professional development for the schools’ split teaching staff.
Superintendent Smith refined her bond proposal to master plan the West Sylvan campus and to reconstruct space – classrooms and other school facilities – to house the sixth grade students on the main campus. That new building would be designed and placed so as to be easily integrated into a rebuilt West Sylvan Middle School when that school is fully renovated in a future bond.
(Ex. C1 at 67-78; emphasis in original.) Ames compiled the questions that were posed by community members. Ames also wrote and/or edited the answers to the questions. Ames prepared the document during work hours. Essick did not prepare or edit the document. Ms. Patterson reviewed and approved the document for PPS. No changes or distribution of the document was made after December 2010. (Test. of Ames, Essick; Exs. 17, C1 at 67-78.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, indicating they violated ORS 260.432:
• will • student safety, security • replacing • updating • improving • increasing student safety and security • making
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 50 of 103 • will receive • will have • upgrades • needs • out-dated • safety and structural concerns • will be rebuilt • up-to-date learning environments as students in neighboring school districts with newer buildings • The schools are • will undergo • in the next voter-approved bond • To lower costs and save taxpayer funds • Will raise • safety and security improvements • The typical homeowner would pay about $300 a year, or about $25 per month. • is in the middle of the rates voters approved in neighboring schools districts • about $1 to over $4 in some school districts • median home • your • you • Portland Public Schools’ taxes are just over a quarter of local property tax bills, 27 percent. Although overall property tax rates are higher in Portland than in surrounding areas, which is due to other government authorities’ tax rates, as [sic] school property taxes are lower. • will you • School rebuilding programs have a direct and significant impact on the local economy – in increasing neighborhood property values, revitalizing neighborhoods, and in jobs created during design and construction. • net 2,600 jobs in the Portland region and $222 million in personal income over the six-year construction time-period, according to an analysis by a local economic consultant firm. • will use • robust procurement process to make sure that underrepresented groups- particularly minorities – benefit from this major public works program. • my • we • We know that every PPS school building needs work. • will offer • safety
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 51 of 103 • we plan to complete rebuilding all of our high schools within 18 years • to be rebuilt • PPS has developed a primarily pay-as-you-go funding program. • will be • our funding • That saves more than $200 million in interest payments alone. • It is a practical, fiscally responsible and sustainable plan. • PPS is the biggest school district in the state, serving 47,000 students, employing more than 6,000 teachers and school support staff, and covering some 100 city neighborhoods. • is appropriate for our size • tax rate of approximately $2 per $1,000 is comparable or less than many of our neighboring districts with newer buildings (see table above). We need to make sure our students can compete for college and jobs with those who attend newer facilities. • Portland Public Schools will not take on more than can be effectively managed and accountably overseen, and used the following main factors to propose the first-phase schools • Providing rebuilt schools • outdated compared to neighboring school districts • Addressing school buildings with higher need • their condition • and level of disrepair • need • The configuration is also important, as some schools are less suitable for today’s teaching and learning practices as a result of crowded classrooms • Renovating schools • are • ensure • There is no simple mathematical calculation; these factors were balanced in the decision-making. • Other school districts’ experience shows that when schools are rebuilt enrollment increases. • Seattle Public Schools • Our rebuilt schools • Updated schools also attract more families, helping property values. • Other cities across the country have seen great success by offering a Middle College option – a magnet school that offers students the chance to earn college credits while still enrolled in high school. Jefferson is the perfect location. The board and superintendent expect this will be an attractive option for students across the district, and for many of the 1,550 high school-age students who
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 52 of 103 now live in the Jefferson area (three-quarters of them choose not to attend the current Jefferson program). • The Jefferson building • doesn’t offer a modern environment to support the Middle College program. • My taxes are already high. • Portlanders • To pay an additional $25 a month. • In tough times jobs and education are core priorities. • Skilled and educated graduates are most likely to land jobs and keep working. • the one that you see on your tax bill • That’s more than a dollar below the average district rate in the metro area, which is almost $7. • does • Is that really a priority? • This is a safety issue. • may be unsafe • replace stage rigging where needed • provides • otherwise we might be in the position of removing the old stage equipment for safety’s sake • our • Seismic safety is a high priority for Portland Public Schools. • increased seismic safety • roofs built to modern construction standards help stabilize the entire building • continues that work • seismic, safety • earthquake safety • will occur • highest priority school building in our structural project category • will have full • which substantially increases earthquake safety as roofs built to modern standards help stabilize the structure • Superintendent Carole Smith • improve safety • she made • Smith considered the challenges • rated the second worst in PPS for its facilities condition, and located more than a mile and across the Sunset Highway • This leads to increased transportation costs, administrative inefficiencies and difficulty in coordination and professional development for the schools’ split teaching staff.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 53 of 103 • Superintendent Smith • her • is fully renovated in a future bond
(Ex. F at 59-61.) Ms. Corbin drew a yellow “X” through the following questions and answers: 1, 2, 3, 25, and 28. Ms. Corbin also crossed out the graph that set forth the Portland Metro Area School Districts Facilities Bond Rate. (Ex. F at 59-61.)
52. In January 2011, PPS issued a document entitled “Portland Public Schools School Facility Bond Measure January 2011,” which stated, in pertinent part:
Voters will decide in the May 17, 2011, election on a bond measure that would allow Portland Public Schools to update, rebuild and increase safety at schools as well as retire debt.
47,000 students educated in aging buildings Portland Public Schools is the largest public school district in Oregon, with 96 school buildings and more than 47,000 students. PPS buildings average 65 years in age; most were built in the 1920s, 1940s and 1950s. Only two schools have been built in the last 30 years. A dozen schools have been closed in the last 10 years.
Years of tight budgets have forced Portland Public Schools to prioritize its spending, directing resources to teachers and learning materials and deferring major school repairs.
As a result, school buildings face multiple issues: ► Schools need updated plumbing, electrical wiring, heating and ventilation, fire alarms, lighting and more. ► Classrooms, science labs and libraries are out of date and cannot support modern educational programs. ► Buildings need additional earthquake safety, handicapped accessibility and safety in stage areas. ► School grounds, fields, and exteriors need repair or replacement.
Upgrades for safety and education The proposed bond measure would fund capital projects for school and classroom needs:
► Increasing school safety. ► Renovating and updating school buildings, classrooms and grounds. ► Rebuilding or comprehensively renovating schools across Portland, where that is more cost effective.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 54 of 103 ► Retiring existing school project debt.
Increasing safety ■ Provide safety updates such as fire and security systems; replace electrical wiring, plumbing and lighting; replace deteriorated outdoor play equipment; install exterior security; replace unsafe school stage rigging.
Renovating and updating ■ Modernize heating systems with more efficient and lower- maintenance fuel source. ■ Replace leaking roofing. ■ Upgrade or create some science labs for grades 6-12 as needed to support a modern science program including equipment, sinks, outlets, lab furniture and more. ■ Provide a mobile up-to-date, classroom teaching technology unit for every school. ■ Provide outdoor learning environments. ■ Refurbish school grounds, exteriors, and fields to reduce injury, and increase security and safety.
*****
Financing, cost to property owners Citizen oversight and annual audits to review bond projects and spending under the $548 million bond program are required. Most of the financing for the school facilities work would be in short- term bonds that mature in one, two or three years, saving interest payments of more than $200 million compared to conventional 20- year bonds.
The estimated bond rate for six years is approximately $2 per $1,000 of assessed property value. It then drops to an estimated 15 cents per $1,000 for no more than 20 additional years. The median assessed home value in the school district is $147,480.
(Ex. C1 at 22-23; emphasis in original.) The document contained the ballot language in handout form. Ames did not draft the document. She performed a clerical role in formatting the document on PPS letterhead. Ames formatted the document during work hours. Essick did not prepare or edit the document. Harvey Rogers, an attorney for PPS, reviewed and approved the ballot language for PPS. (Test. of Ames, Essick; Exs. 17.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, indicating they violated ORS 260.432:
• increase safety • 47,000 students educated in aging buildings • Only two schools have been built in the last 30 years. A dozen
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 55 of 103 schools have been closed in the last 10 years. • Years of tight budgets have forced Portland Public Schools to prioritize its spending, directing resources to teachers and learning materials and deferring major school repairs. • need • cannot support modern educational programs • earthquake safety • safety in stage areas • needs • increasing school safety • increasing safety • replace unsafe school stage rigging • with more efficient and lower-maintenance fuel source • needed • increase security and safety • that mature in one, two, or three years, saving interest payments of more than $200 million compared to conventional 20-year bonds • The median assessed home value in the school district is $147,480.
(Ex. F at 5-6; Test. of Cox.)
53. On January 12, 2011, an updated document entitled “School Facilities Bond Measure: A proposal to update learning environments and upgrade safety, security and building systems across Portland Public Schools,” was posted on the PPS website and provided, in material part:
PROPOSED FACILITIES WORK AT EVERY SCHOOL
In the May 2011 election, Portland Public School voters will decide on a proposed school facilities bond measure. The measure would fund a six-year program to start rebuilding Portland Public Schools, and would: update learning environments for students; upgrade safety, security and other systems in every school; rebuild nine schools and design a tenth; and improve the district’s financial position by repaying debt.
By the end of the first phase, PPS will be able to provide:
• Classroom updates at high schools to help support teaching and learning and a rigorous program, such as media and technology labs, science labs and equipment, and music and art rooms, according to the needs at each high school. • Every 6 th , 7 th , and 8 th grader with updated science labs including the critical components necessary to support a relevant science program, such as sinks, power outlets, eye wash stations, storage,
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 56 of 103 lab desks, stools, portable burners and lab equipment. • Up-to-date play apparatus for students in kindergarten through 5 th grade (or 8 th grade at K-8 schools), to replace many schools’ worn- out playground equipment. • Covered Play Area to ensure students from pre-kindergarten through 5 th grade (or 8 th grade at K-8 schools) can engage in outdoor physical education and recess, encouraging activity and wellness.
*****
• Enhanced student safety and security, with updated fire alarm systems where most needed, and managed access security systems at every school.
*****
The total facilities bond, $548 million over six years, will cost approximately $2 per $1,000 of taxable assessed value, or $300 a year for the median homeowner.
*****
HIGH SCHOOLS
ALLIANCE at MEEK HIGH SCHOOL (1953)
• Classroom Updates: Based on Alliance’s unique needs, the school will receive prioritized classroom upgrades to better support learning and teaching environments which may include technology, learning equipment and materials, upgraded music and art studios, and the replacement of worn-out furnishings. • Grounds: Educational opportunities may be addressed through the provision of improved outdoor learning environments. For improved safety and security, Alliance’s grounds may be provided with landscaping, walkways, exterior lights and signs. • Increased Efficiency in School Heating Systems: Alliance’s out- of-date and inefficient boilers will be updated from fuel oil to natural gas for practicality of maintenance, energy efficiency, lower utility bills and a cleaner environment. • Increased Safety for Cafetorium Stage: To ensure the safety of students, teachers, school staff and volunteers, out-of-date stage rigging and curtains in the Alliance cafetorium will be evaluated, inspected and repaired or replaced as needed. • Teaching Technology Updates: To assist teachers and students, Alliance will be provided with a mobile interactive audio-visual
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 57 of 103 presentation system that can be used throughout the school. • Increased Accessibility for Students, Staff and Families: Renovations will be made to Alliance on the interior first floor to upgrade accessibility to classrooms, restrooms and drinking fountains and outside to ensure accessibility from the first floor to the parking lot and/or curb. • Increased School Security: To provide a greater level of security for students and staff at Alliance, a managed access system for staff will be provided at exterior building entrances. Main entrances will remain open during school hours.
BENSON HIGH SCHOOL (1917)
• Master Planning: Collaboration between District Staff and the Community will occur on Benson to identify specific future needs to improve the teaching/learning environment and create a unique school identity. This work will guide and inform future projects. • Classroom Updates: Based on unique needs recommended by a Blue Ribbon Committee, will receive prioritized classroom upgrades to better support learning and teaching environments which may include technology, learning equipment and materials, and the replacement of worn-out furnishings. • Grounds: Educational opportunities may be addressed through the provision of improved outdoor learning environments. For improved safety and security, Benson’s grounds may be provided with landscaping, walkways, exterior lights and signs. • Upgrades for Fire and Life Safety: Benson’s school-wide fire alarm system will be updated and brought to current standards. • Increased Safety for Auditorium Stage: To ensure the safety of students, teachers, school staff and volunteers, out-of-date stage rigging and curtains in the Benson auditorium will be evaluated, inspected and repaired or replaced as needed. • Teaching Technology Updates: To assist teachers and students, Benson will be provided with a mobile interactive audio-visual presentation system that can be used throughout the school. • Increased Accessibility for Students, Staff and Families: Renovations will be made to Benson on the interior first floor to upgrade accessibility to classrooms, restrooms and drinking fountains and outside to ensure accessibility from the first floor to the parking lot and/or curb. • Increased School Security: To provide a greater level of security for students and staff at Benson, a managed access system for staff will be provided at exterior building entrances. Main entrances will remain open during school hours.
CLEVELAND HIGH SCHOOL (1929)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 58 of 103 • Full Rebuild: Cleveland will be fully renovated and upgraded to modern teaching and building standards for a comprehensive high school program, while maintaining valued historic elements of the 1929 School building. Learning and teaching environments will be designed and constructed to allow students to be competitive and prepared for college, work and life. This will include classroom, technology and site improvements as well as safety, structural, security, mechanical, seismic and ADA accessibility upgrades. The grounds will be upgraded with outdoor learning environments, landscaping, updates for physical education athletic and recreational use, walkways, entrances, lighting and signs. The project will be designed to reduce energy usage and demonstrate good resource stewardship.
(Ex. C1 at 24-54; emphasis in original.) The document sets forth the proposed work at every school in the Portland School District. Ames wrote the summary sheet and the stock language describing the school projects. Ames performed the work during work hours. Essick did not prepare or edit the document. Mr. Condit reviewed and approved the document for PPS. The staff in the Office of School Modernization used the legally reviewed language to generate the list of work by school. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, indicating they violated ORS 260.432:
• upgrade safety, security • PPS will be able to provide: • needs • worn-out playground equipment • to ensure students from pre-kindergarten through 5 th grade (or 8 th grade at K-8 schools) can engage in outdoor physical education and recess, encouraging activity and wellness. • Enhanced student safety and security • needed • will cost approximately $2 per $1,000 of taxable assessed value, or $300 a year for the median homeowner • unique needs • will receive prioritized classroom • may include • may be addressed • For improved safety and security • may be provided • Increased Efficiency • boilers will be updated from fuel oil to natural gas for practicality of maintenance, energy efficiency, lower utility bills and a cleaner environment. • To ensure the safety of students, teachers, school staff and
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 59 of 103 volunteers, out-of-date stage rigging and curtains in the Alliance cafetorium will be evaluated, inspected and repaired or replaced as needed. • will be provided • will be made • Increased Accessibility • upgrade accessibility • Increased School Security: To provide a greater level of security for students and staff • will remain • future needs • unique needs recommended by a Blue Ribbon Committee, will receive • which may include • For improved safety and security • Upgrades for Fire and Life Safety • will be • To ensure the safety of students, teachers, school staff and volunteers, out-of-date stage rigging and curtains in the Benson auditorium will be evaluated, inspected and repaired or replaced as needed. • ensure accessibility from the first floor to the parking lot and/or curb. • Increased School Security: To provide a greater level of security for students and staff at Benson • safety • security • will be upgraded • will include
(Ex. F at 7-37; Test. of Cox.)
54. During the period of January 12, 2011 through March 21, 2011, PPS issued regional neighborhood brochures entitled “Portland Public Schools Bond Measure School building projects for increased safety and updated classrooms.” The first page of the brochures provided, in relevant part:
What will the bond buy your neighborhood?
Updated educational environments and student and school staff safety are priorities for Portland Public Schools. All 85 schools will be provided with updates through the proposed bond measure including security, fire, earthquake safety, handicapped accessibility, and building systems as well as classroom equipment and learning technology. School grounds, exteriors, fields, and
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 60 of 103 heating systems will also receive updating.
(Ex. C1 at 55-66; emphasis in original.) The second and third pages of the brochure differed by region. It set forth each school in that particular region and the proposed update for each school. For instance, in the Central Eastside of Portland, the brochure provided, in pertinent part:
Schools – Central Eastside Portland
All 85 of Portland Public Schools’ building will benefit from the proposed bond measure. Enclosed is the list for this area of Portland. ***.
Abernethy K-5 (1925) Address safety of stage area rigging and lights, add mobile teaching technology for schoolwide use, increase ADA accessibility and install managed access system at entrances.
Benson HS (1917) Based on school-specific needs and priorities, update classroom technology, equipment and spaces and upgrade exterior landscaping, signage, walkways, and lighting, upgrade fire alarm system, address safety of stage area rigging and lights, add mobile teaching technology for schoolwide use, increase ADA accessibility and install managed access system at entrances.
Buckman K-5 (1922) Replace wooden playground perimeter, address safety of stage area rigging and lights, add mobile teaching technology for schoolwide use, increase ADA accessibility and install managed access system at entrances.
Cleveland HS (1929) Fully renovate or rebuild school.
Creston K-8 (1946) Build covered outdoor play area, upgrade science labs, address safety of stage area rigging and lights, add mobile teaching technology for schoolwide use, increase ADA accessibility and install managed access system at entrances.
DaVinci MS (1928) Upgrade fire alarm system, upgrade science labs, convert boiler to natural gas, address safety of stage area rigging and lights, add mobile teaching technology for schoolwide use, increase ADA accessibility and install managed access system at entrances.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 61 of 103 Duniway K-5 (1926) Build covered outdoor play area, convert boiler to natural gas, address safety of stage area rigging and lights, add mobile teaching technology for schoolwide use, increase ADA accessibility and install managed access system at entrances.
Grout K-5 (1927) Replace wooden play equipment, address safety of stage rigging and lights, add mobile teaching technology for schoolwide use, increase ADA accessibility and install managed access system at entrances.
(Ex. C1 at 55-66; emphasis in original.) The last page of the regional brochures, provided, in part:
PPS: School Building Bond Measure
In the May 17, 2011 election, voters will decide on a school facilities bond measure. All 85 PPS school buildings – and those housing PPS special education and alternative programs – will receive updates to support teaching and learning and upgrades to student safety, security and buildings systems under the proposed bond measure. Inside is the list for this section of Portland.
To see the full list of 85 schools and their updates, go to www.pps.k12.or.us.
PPS Proposed Bond Measure: Preliminary Program Ratios 15
• Exterior Building Security – 2% • Earthquake Safety – 12% • Fire & Life Safety – 8% • Accessibility – 7% • Classroom & Building Systems – 39% • Classroom Learning Technology – 3% • Heating and Weatherization Updates – 21% • Play Structures & School Sitework – 6% • Classroom Learning Equipment & Furnishings – 3%
Our schools need major updates
• During years of tight school budgets, Portland Public Schools has
15 The proposed ratios are set forth in the document as pieces of a pie. The ratios add up to 101%. (Ex. C1 at 55.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 62 of 103 had to defer major repairs or upgrades to schools in order to maintain funding for core instructional programs. • PPS teachers and students do not have the safe and healthy learning environment and educational technology, equipment and facilities that students have in surrounding districts with newer schools.
Our schools
• Portland Public Schools is the largest school district in Oregon. • Almost 47,000 students with growing enrollment. • More than 6,000 teachers and school support staff. • 85 schools, along with special education and alternative program sites.
Age of our schools
• Average age: 65 years. • Most built in the 1920s and Baby Boom after World War II. • Only two schools built in the last 30 years.
The total facilities bond, $548 million over six years, will cost approximately $2 per $1,000 of taxable assessed property value, or $300 a year for the median homeowner.
(Ex. C1 at 55-66; emphasis in original.) The last page of the document also included the following language in the footer: Portland Public Schools is an equal opportunity employer and educator. (Ex. C1 at 55-66.) Ames wrote the cover information and the stock language for the school work descriptions. Ames performed the work during work hours. Essick did not prepare or edit the document. Mr. Condit reviewed and approved the regional brochures for PPS. The staff in the Office of School Modernization used the legally reviewed language to generate the list of work by school. (Test. of Ames; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, on each regional brochure indicating they violated ORS 260.432:
• will receive • upgrades to student safety, security • our • need • During years of tight school budgets • safe and healthy learning • will cost • $300 a year for the median homeowner • preliminary program ratios • will
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 63 of 103 • your • safety are priorities • will be provided • security, fire earthquake safety • will also receive • will benefit • address safety of stage are rigging • increase • install managed access • needs • upgrade exterior • add • increase ADA • install managed access • build • replace
(Ex. F at 38-49; Test. of Cox.) On each regional brochure, Ms. Corbin drew a yellow “X” through a picture of two children on the front page. Ms. Corbin also crossed out the paragraphs entitled “Our schools need major updates,” “Our schools,” and “Age of our schools,” on the last page of the brochures. (Ex. F at 38-49.)
55. On or about January 20, 2011, a document entitled “School facilities bond would support six new or replaced high school fields” was placed on the PPS website, and provided, in material part:
Measure 26-121 on the May ballot would cover most project costs to complete six high school fields – so that students and community members across Portland would have access to a network of safe, updated and high-quality fields.
Portland Public Schools fields and tracks are used seven days a week for students’ physical education and for student and community recreational and organized athletic use.
*****
Now, just three high schools in Portland Public Schools have year- round, safe outdoor playing fields and tracks: Cleveland (2008), Roosevelt (2010) and Benson (under construction).
Other schools have fields that are old, often with compacted soils, poor drainage and uneven, patchy and damaged turf. Portland’s rainy weather can render these fields unusable for PE, basic high school sport programs and recreational use.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 64 of 103 The bond would invest dollars covering most- but not all – project costs to build or replace six sports fields:
• Franklin High School – A new athletic field • Grant High School – Funding toward a new field and track, to be scheduled and completed as part of the larger Grant Fields Project. • Jefferson High School – Middle College for Advanced Studies – A field and track as part of the rebuild included in the bond, later in the bond program. • Lincoln High School – Replacement of the existing turf field, now well-worn by heavy usage, intended for fall 2011. • Madison High School – A new athletic field. • Wilson High School – A new athletic field.
(Ex. C1 at 104-105; emphasis in original.) The document also included the following language in the footer, in part:
At Portland Public Schools, this is our goal: By the end of elementary, middle, and high school, every student by name will meet or exceed academic standards and will be fully prepared to make productive life decisions. ***. Portland Public Schools is an equal opportunity educator and employer.
Portland Public Schools recognizes the diversity and worth of all individuals and groups and their roles in society. It is the policy of the Portland Public Schools Board of Education that there will be no discrimination or harassment of individuals or groups on the grounds of age, color, creed, disability, marital status, national origin, race, religion, sex or sexual orientation in any educational programs, activities or employment.
(Ex. C1 at 104-105.) Ames wrote the document by compiling information from the Office of School Modernization. Ames prepared the document during work hours. The document was posted on the PPS website as part of a package of materials. Ames also distributed the document at neighborhood meetings, along with other single-issue documents pertaining to seismic activity, safety and security measures, and the cost to homeowners. Essick did not prepare or edit the document. Mr. Condit reviewed and approved the document for PPS. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases on the document indicating they violated ORS 260.432:
• School facilities bond would support six new or replaced high school fields • safe, updated and high-quality fields • just • safe outdoor
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 65 of 103 • old, often with compacted soils, poor drainage and uneven, patchy and damaged turf. Portland’s rainy weather can render these fields unusable for PE, basic high school sport programs and recreational use. • included in the bond
(Ex. F at 88-89; Test. of Cox.) Ms. Corbin also put a yellow “X” through both paragraphs in the footer. (Ex. F at 88-89.)
56. In February 2011, the PPS Pulse (monthly newsletter) was emailed to the PPS Community. The newsletter set forth a message from the Superintendent as well as various links to other stories. The newsletter provided, in relevant part:
Register and vote!
Our community faces some significant decision in the May election:
• We will elect four members of the Portland School Board – a majority of the volunteer board that decides policies and direction for our schools and students. • We will vote on a local operating levy that would fund more than 200 teaching positions, at a cost of $9 a month to the typical homeowner. • We will decide on a school facilities bond measure that would pay for safety and learning updates at our school buildings, at a cost of $25 a month for the typical homeowner.
These are all important decisions, and I encourage you to vote. If you have moved since the last election or will turn 18 before May 17, you may register online: The deadline to register to vote in the May election is April 26.
And please, encourage colleagues, family members, friends and neighbors who live in Portland Public Schools to learn more about the issues – and to vote.
Thank you
[signature]
Carole Smith, PPS Superintendent
*****
March 17 levy would minimize state cuts
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 66 of 103 The state’s projected revenues dropped by another $100 million in the latest forecast.
For Portland Public Schools, the replacement local option levy on the May ballot would maintain more than 200 teaching jobs next year – limiting the effect of the state budget cuts. [Read more]
Teachers, parents praise new math curriculum New math materials for K-5 students are headed to classrooms this fall, and there’s already positive reaction. In pilot classrooms, both teachers and parents report positive results. [Read more]
*****
School facilities bond: Better fields, safer schools In addition to funding the rebuilding of nine schools, Portland Public Schools’ facilities bond – Measure 26-121 in the May election – would pay for an upgrade of a half-dozen high school fields and for safety and security improvements districtwide [sic]. [Read more]
(Ex. C1 at 79-80; emphasis in original.) Ames drafted the message from the Superintendent. Ames edited the “Better fields, safer schools” document. Ames performed the work during work hours. Essick edited the message from the Superintendent for grammar only. Essick also edited the paragraph regarding the “March 17 levy” for grammar only. Essick performed the work during work hours. Ms. Patterson and Mr. Condit reviewed and approved the documents for PPS. (Test. of Ames, Essick; Exs. 9, 17.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, indicating they violated ORS 260.432:
• Our • We will • our schools and students • We will vote • We will decide • $25 a month for the typical homeowner • These are all important decisions, and I encourage you to vote. • you • And please, encourage colleagues, family members, friends and neighbors who live in Portland Public Schools to learn more about the issues – and to vote. • minimize state cuts • The state’s projected revenues dropped by another $100 million in the latest forecast. • cuts • Better fields, safer schools • In addition to funding the rebuilding of nine schools, Portland
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 67 of 103 Public Schools’ facilities bond – Measure 26-121 in the May election • for safety and security improvements
(Ex. F at 62-64; Test. of Cox.) Ms. Corbin also drew a yellow “X” through the picture of a child under the caption “Partnerships,” which linked to a story involving the Russian Immersion Program. (Ex. F at 62-64.)
57. On February 7, 2011, a document entitled “From the Superintendent” was issued to all PPS employees. The document provided, in relevant part:
I just wanted to let you know that the Portland School Board has referred a replacement local option levy to the May 17 ballot. In short:
• State funding is 75 percent of our general education funding; the Governor’s budget proposal for the State School Fund could leave PPS with an $80 to $90 million shortfall over the next two years. • The levy would provide an additional $19 million a year. This will pay for more than 200 positions in our schools – teachers and classified educational staff. • The rate, at $1.99 per $1,000 of taxable assessed value, is 74 cents higher than the 2006 levy it would replace. The levy will cost the typical homeowner an estimated $24.45 a month, an increase of $9.09 per month over the current levy. • The additional funding from the local option would help retain educational staff, programs in our schools and class sizes. However, PPS would still need to make substantial budget cuts.
I continue to work with our budget office, principals and other members of the staffing team, and PPS leaders to plan for next year. Voters will not decide on the local option until May 17, so I will prepare a budget both with and without that additional $19 million in staffing support.
I know this difficult budget time adds uncertainty for everyone in the school district – employees, students, families and our partners. I will continue to share the information I can and to invite your input.
Thank you for all you do for our students.
[signature]
Carole Smith
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 68 of 103 P.S. As with the school facilities bond measure, restrictions on public employee campaigning apply to the local option. You may share factual information, but may not advocate for or against the local option levy while at work or using any district resources. The guidelines for public employees are posted online for easy reference.
(Ex. C1 at 18-19; emphasis in original.) The document included the following language in the footer, in part:
At Portland Public Schools, this is our goal: By the end of elementary, middle, and high school, every student by name will meet or exceed academic standards and will be fully prepared to make productive life decisions. ***. Portland Public Schools is an equal opportunity educator and employer.
(Ex. C1 at 18-19.) Ames wrote the first draft of the document. Ames performed the work during work hours. Essick did not prepare or edit the document. Mr. Cowie and Superintendent Smith edited the document. Ms. Patterson reviewed and approved the document for PPS. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, indicating they violated ORS 260.432:
• you • our • could leave • will • our schools • $24.45 a month, an increase of $9.09 a month over the current levy. • I
(Ex. F at 1-2; Test. of Cox.) Ms. Corbin also made a yellow mark through the entire document (except the footer). (Ex. F at 1-2.)
58. On February 8, 2011, a document entitled “Facilities bond includes safety, security measures” was posted on the PPS website, and provided, in pertinent part:
The school facilities bond, Measure 26-121 in the May election, includes updates to increase safety and security at every PPS school and the rebuilding of nine schools to full modern standards. Work includes increased security at entrances, environmental design for safety and crime prevention, fire alarm replacements, increased safety in stage areas, transportation safety and seismic upgrades.
Facilities Bond Measure 26-121
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 69 of 103 Safety and Security Program
The safety and security is a high priority for Portland Public Schools – for our 47,000 students and more than 6,000 employees, as well as families and community members who spend time in school buildings. The school facilities bond, Measure 26-121 in the May election, includes updates to increase safety and security at every PPS school.
Site security for staff and students
Increased security at entrances: Every school building in Portland Public Schools will have a key-card access management system at exterior building entrances. This will increase the security of each building and limit access points for non-staff visitors to schools. The new system will allow PPS to immediately deactivate staff key cards when they are misplaced or lost; currently, entire buildings must be re-keyed, which takes time and adds considerable expense.
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Fire and life safety
Fire alarm and fire suppression: Nine schools will have fully updated fire alarm systems. In addition, the nine schools to be rebuilt will have complete and up-to-date alarm and fire suppression systems, including sprinklers, under current building standards.
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Seismic safety
Seismic upgrades: Improving school buildings’ earthquake safety continues to be a priority for PPS. A 1995 bond measure included $47 million in seismic safety improvements at 53 schools. The school facilities bond will pay for rebuilding nine schools to modern seismic standards and for seismic bracing for the Beverly Cleary K-8 School’s main campus, the Fernwood building. In addition to Fernwood and the rebuilt schools, four schools will receive roof replacements that will include seismic reinforcing. In 2009, nine roofs were replaced and seismically reinforced.
(Ex. C1 at 102-103; emphasis in original.) The document included the following language in the footer, in part:
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 70 of 103 At Portland Public Schools, this is our goal: By the end of elementary, middle, and high school, every student by name will meet or exceed academic standards and will be fully prepared to make productive life decisions. ***. Portland Public Schools is an equal opportunity educator and employer.
Portland Public Schools recognizes the diversity and worth of all individuals and groups and their roles in society. It is the policy of the Portland Public Schools Board of Education that there will be no discrimination or harassment of individuals or groups on the grounds of age, color, creed, disability, marital status, national origin, race, religion, sex or sexual orientation in any educational programs, activities or employment.
(Ex. C1 at 103.) Ames wrote the document by compiling information from the Office of School Modernization. Ames prepared the document during work hours. The document was posted on the PPS website as part of a package of materials. Ames also distributed the document at neighborhood meetings, along with other single-issue documents pertaining to seismic activity, new high school fields, and the cost to homeowners. Essick did not prepare or edit the document. Mr. Condit reviewed and approved the document for PPS. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases on the document indicating they violated ORS 260.432:
• Facilities bond includes safety, security measures • includes • increase safety • includes increased security • safety and crime prevention • increased safety in stage areas • transportation safety and seismic upgrades • Safety and Security Program • The safety and security is a high priority for Portland Public Schools • our • increase safety and security • Site security for staff and students • Increased security • will have • will also allow • which takes time and adds considerable expense • will have fully • will have complete • up-to-date alarm • Seismic safety
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 71 of 103 • Seismic upgrades: Improving school buildings’ earthquake safety continues to be a priority for PPS • will pay • will include • will receive
(Ex. F at 86-87; Test. of Cox.) Ms. Corbin also put a yellow “X” through both paragraphs in the footer. (Ex. F at 86-87.)
59. On or about March 11, 2011, Ames prepared a document entitled “Impact of PPS measures on homeowners May 2011 election: Measures 26-121 and 26-122,” which provided in material part:
Two Portland Public Schools measures are on the May 2011 ballot:
• Measure 26-121, a bond measure to increase safety and update school buildings, at an estimated rate of $2 per $1,000 of taxable assessed value. • Measure 26-122, a local option levy to pay for teaching positions, replacing a levy approved in 2006. The 2011 levy’s rate, at $1.99 per $1,000 is 74 cents higher than the levy now in place.
According to the Multnomah County Assessor’s office, the median home in Portland is valued just over $275,000 and carries a taxable assessed value of roughly $145,000. At a total rate increase of $2.74 per $1,000 that median homeowner would pay almost $400 in additional property taxes per year or roughly $33 per month if both measures were in place.
The following chart breaks down the cost to homeowners based on the value of their homes. The “real market value” is the county assessor’s estimate of what a home is worth. The “taxable assessed value” is used to calculate the taxes due. If both measures are approved, the PPS tax rate would increase by $2.74 per $1,000.
Individual homeowners may calculate their own costs by multiplying their property’s Taxable Assessed Value times $2.74 per $1,000.
As the chart shows, 10 percent of homes are taxed at $83,500 or less, and owners would pay increased taxes of $19 or less per month. Fifty percent of homeowners will pay a combined $33 a month or less.
Annual Tax
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 72 of 103 Real Taxable Increase Monthly Market Assessed Bond rate Levy Increase at Tax Percentile Value Value $2/$1,000 $0.74/$1,000 $2.74 Increase
10% $173,210 $83,500 $167 $62 $229 $19 20% $202,590 $99,570 $199 $74 $273 $23
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90% $511,730 $307,640 $615 $228 $843 $70
SOURCE: Data on values extracted from Multnomah County Division of Assessment, Recording & Taxation file of more than 130,000 home assessments in Portland Public Schools district.
(Ex. C1 at 101; emphasis in original.) Ames prepared the document during work hours. The document was posted on the PPS website as part of a package of materials. Ames also distributed the document at neighborhood meetings, along with other single-issue documents pertaining to safety and security measures, seismic activity, and new high school fields. Ames prepared the document using language from other documents that had been previously approved by counsel. Ames prepared the graph using the cost figures from other documents that had been previously approved by counsel. Ames compiled the document to help homeowners understand the costs. Ames did not have legal counsel review the document. Essick did not prepare or edit the document. (Test. of Ames, Essick; Exs. 17, C1, F.) Using the Manual, Ms. Corbin marked the following words and phrases on the document, among others, indicating they violated ORS 260.432:
• homeowners • is • median • median homeowner • if both measures were in place • breaks down the cost to homeowners • are approved • their own costs • are taxed at $83,500 or less • $19 or less per month • will pay • $33 a month or less
(Ex. F at 85; Test. of Cox.) Ms. Corbin also highlighted the entire 90% percentile as being in violation of ORS 260.432. (Ex. F at 85.)
60. In April 2011, Mr. Cowie prepared a brochure entitled “Portland Public Schools Focused on What Counts Report on Our Schools 2011,” which provided in relevant part:
You have a stake in Portland Public Schools. With 47,000
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 73 of 103 students and 85 schools, PPS is core to every neighborhood. Our schools are your schools.
Here are our latest results – and how we intend to get better, even in a time of tight budgets.
Our goal is to prepare each student with the knowledge and skills he or she needs to succeed in life and help Portland thrive. We’re focused on what counts:
►High-quality teaching and leadership in every school. ►Well-rounded programs that are rigorous and relevant, and meet the needs of each learner. ►High expectations for results – a shared believe that every student can achieve. ►Modernized learning environments that help teachers and students do their best work.
We’re seeing better results. Students have a longer school year. Student achievement has improved at key grades. More students are on track to graduate. Enrollment is growing as more families choose our schools.
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Milestones results for 2009-10
Milestones are specific measures at key grades. They are linked to future student educational success.
Percentage of students One-year meeting milestone s change
Entering first grade ready to read 76% ↑ 6%
Third-graders exceeding reading benchmark 46% ↑ 4 %
Seventh-graders with 90% or better attendance records 52% ↓ -3%
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 74 of 103 Eighth-graders passing algebra 57% ↑ 13%
Students entering 10 th grade on track to graduate 55% ↑ 4%
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Strategies for student success
Good things are happening in every school. But we need to do more to get the best results for every student. Today, in classrooms across Portland Public Schools, educators are using new approaches to boost learning.
Effective teaching
Good teaching is the most important factor in a student’s education. Portland Public Schools is taking steps to make sure that students receive teaching that challenges and inspires them, and that prepares them to meet learning standards.
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Well-rounded classes that meet the needs of all the learners
Our schools are changing. Educators are focused on delivering well-rounded classes, offering better support to struggling students and challenging students who are ready for more.
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High expectations
We owe every student the opportunity to achieve his or her full potential. Yet, for too long, our schools have not delivered the same results for students of color and students from low-income families as they have for white and higher-income students.
Today, our schools are raising expectations for students. We are offering more support to struggling students. We are making our results more transparent. Schools are sharing “what works.”
*****
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 75 of 103 Saving costs, focusing on the classroom
Three-quarters of the PPS budget comes from the state of Oregon. But state cuts have taken a toll. So have shifting state budget priorities. K-12 schools now receive less than 39 percent of the state budget, down from 45 percent six years ago.
Portland Public Schools has focused funding where it counts: 75 cents of every dollar goes directly into schools (for educators and learning materials).
Nearly all the rest pays for school support – such as buses and school building upkeep.
We have repeatedly reduced costs, found efficiencies and stretched limited funding to maximize support to students in the classroom:
►Teachers have agreed to no cost-of-living adjustment (COLA) for the next two years, which will help keep class sizes down. ►PPS spends 4 cents of every dollar on administration, half of what the average big city school district spends. ►PPS staff pay a share of health and retirement benefits, unlike employees in other public agencies. ►The district has closed 12 schools in the past 10 years. ►We have managed reserves, so schools could preserve a full school year in the face of state cuts.
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A stronger high school system
Each year, graduates of PPS high schools win prestigious scholarships. Gain admission to the most competitive colleges in the world. Or enter careers that demand highly technical skills.
But for too long, not every neighborhood school has been able to offer well-rounded classes. Graduation rates have been too low, especially for students of color. Our schools have not educated all students equally well.
With input from more than 10,000 Portlanders, we are making changes at our high schools. This fall, high schools will offer students:
►Guaranteed access to rigorous, well-rounded classes, such as world language, art, music and college credits.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 76 of 103 ►Stronger ties to teachers, to keep students engaged in school. ►More options to explore career interests and advanced studies. ►The ability to obtain advanced technical skills in high-demand fields.
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School measures for buildings, teaching positions on May 2011 ballot
School facilities bond: School safety, classroom updates
A proposed six-year school construction bond would upgrade schools and address classroom needs at every PPS school, in every neighborhood. Bond funds would:
►Increase safety and security. Update roofs, boilers and protect schools against earthquakes. ►Modernize science labs and high school classrooms and add teaching technology. ►Rebuild or renovate nine schools (across Portland) where it is more cost-effective to do so. ►Save taxpayers more than $200 million in interest through a six- year, “pay-as-you-go” financing plan.
The proposed bond is on the May 17 ballot (Measure 26-121). School construction bond revenue cannot be used for teaching positions or classroom materials. A citizen panel would oversee bond spending. At an estimated $2 per $1,000 tax rate, the bond would cost the median homeowner $300 a year.
Local funding for classrooms
Our schools face cuts in the next two-year state budget. They also may lose federal education stimulus dollars that have preserved more than 400 school jobs and effective programs, such as summer school.
To offset these cuts, the Portland School Board has proposed replacing the current local levy at a new rate (Measure 26-122 on the May 17 ballot).
If approved, the levy would raise an added $19 million for our schools. (It would add 74 cents to the current rate, for a total of $1.99 per $1,000 of assessed value.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 77 of 103 The replacement levy would:
►Pay for 200 teaching positions that would otherwise have to be eliminated by state cuts. The levy would not pay for central administration. ►Cost the median homeowner an estimated $24.45 a month, $9.09 more than the current levy.
(Ex. 3.) The brochure also set forth the proposed school upgrades by category:
FIRE AND LIFE SAFETY ►Updated fire alarm systems ►Seismic safety upgrades
SAFETY AND STRUCTURAL ►Roof repair, replacement ►Stage-area rigging and lights inspected, replaced for safety ►Upgrades to lighting, walkways and landscaping
ACCESS ►Increased access for children and adults with disabilities
SECURITY ►New keycard access systems at all schools ►Video security at rebuilt schools
CLEANER, MORE EFFICIENT HEAT ►Oil-burning boilers converted to natural gas to save custodial time and cut utility bills
CLASSROOMS AND LABS ►Up-to-date, fully equipped science labs for 6 th , 7 th and 8 th grades ►High school classroom updates
PE AND PLAY ►Covered play areas, new play structures ►Updated athletic fields
MOBILE TEACHING TECHNOLOGY ►Interactive unit for schoolwide use
REBUILD/REDESIGN ►Nine schools rebuilt ►Design and permitting for Lincoln High School.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 78 of 103 (Exs. 3, C1 at 6-13; emphasis in original.) Ames did not prepare the document. Ames reviewed the document before any cost information was included. Ames performed the work during work hours. Ames told Mr. Cowie that he needed to include the cost information and run the document by legal counsel. Essick did not prepare the document. Essick edited the document for grammar only. Essick performed the work during work hours. Mr. Condit reviewed and approved the document for PPS. The document was distributed to the PPS Community. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases on the document, among others, indicating they violated ORS 260.432:
• Portland Public Schools Focused on What Counts Report on Our Schools 2011 • You • yours • Our • he or she • We’re focused on what counts • We’re • School safety • at every PPS school • increase safety and security • protect schools against earthquakes • modernize • where it is more cost-effective to do so • more cost-effective to do so • Save taxpayers more than $200 million in interest • the bond would cost the median homeowner $300 a year • Local funding for classrooms • Our schools • Cuts • $1.99 per $1,000 of assessed value • Cost the median homeowner an estimated $24.45 a month, $9.09 more than the current levy. • FIRE AND LIFE SAFETY • SAFETY AND STRUCTURAL • CLEANER, MORE EFFICIENT HEAT • natural gas to save custodial time and cut utility bills
(Ex. 19; Test. of Cox.) Ms. Corbin also indicated that the title of the document violated factor K; the first five paragraphs violated factors E, F, and L; and the “milestones” paragraph and chart violated factors C and E. (Ex. 19.)
61. On April 1, 2011, the Office of School Modernization issued a document entitled “Summary breakdown of school rebuilding projects within the proposed capital program bond budget,” which stated, in relevant part:
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 79 of 103 Professional cost estimators and K-12 program and construction management firms provided detailed and relevant cost data that informed Portland Public Schools’ facilities project budge estimates. This budget has undergone extensive review with peer districts, design and construction professionals and business leaders in Portland and the Pacific Northwest.
This table 16 presents information on projects bid or completed in regional peer school districts to illustrate cost variances between scopes and projects. These projects are not intended to provide directly comparable estimates. Each project is unique and costs vary depending upon level of improvement, onsite and offsite conditions, age, design and condition of existing buildings, jurisdictional requirements, program requirements, funding sources, local contracting market, etc. Comparing costs between projects can be most adequately done by building and cost estimating professionals after a thorough review of all cost factors.
(Ex. C1 at 97.) The document had information set forth in the footer, including in part:
Jefferson will undergo a community outreach and master planning process that may conclude Jefferson should be replaced with a new building, fully renovated (with partial demolition), or a portion renovated an a portion built new.
(Ex. C1 at 97.) Ames did not prepare the document. Essick did not prepare the document. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases indicating they violated ORS 260.432:
• Comparing costs between projects can be most adequately done by building and cost estimating professionals after a thorough review of all cost factors. • will undergo • may conclude Jefferson should be replaced with
(Ex. F at 81; Test. of Cox.)
62. On April 2, 2011, C.J. Sylvester issued a letter entitled, “School construction budget is based on independent professional estimates; Costs are in line with regional school districts,” to the PPS Community that stated, in material part:
The proposed bond for Portland’s Schools will rebuild deteriorated school buildings while providing safety, structural upgrades and modernized learning environments. The list of projects is significant, as are the measures taken to ensure the construction and financing connected to the bond is accountable, transparent
16 Because Ms. Corbin did not mark up the table, it is not set forth in the findings. (Ex. C1 at 97.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 80 of 103 and appropriate.
With guidance from independent construction engineers and professional cost estimators who know school construction, Portland Public Schools developed a comprehensive budget for our school bond program.
The bond will provide safety and other needed updates at every one of our schools – and we have laid out a budget that ensures we can deliver every project on time and on budget, as promised to voters.
Our pay-as-you-go financing plan, which primarily relies on short- term financing will save more than $200 million in interest payments.
These are some key points about our school construction budget:
Few other school districts – outside Seattle – have completed truly similar projects, meaning project-to-project comparisons inside Oregon are difficult to make.
Many other Oregon school districts, unlike PPS, have school construction bonds in place. But most recent projects, especially in Portland’s suburbs, are new construction on open fields. PPS projects are full renovation of historic buildings that are 70 to 100 years old, on tight urban sites in dense neighborhoods. Our schools are on average 65 years old, and most have never been fully updated. They are outdated, with leaky roofs, inadequate electrical, plumbing and classroom equipment.
What we are proposing is different and more extensive than the work done in many other Oregon school districts. For example, a modest remodel of lighting, windows, paint and flooring costs far less per square foot. Few if any other Oregon school projects included full earthquake retrofits, full modernization of schools or re-construction in compact urban areas – with attention to retaining the historic character of the neighborhood. Earthquake safety upgrades alone can account for 15 to 30 percent of school construction costs.
The school construction projects in PPS are most similar to those that have been recently accomplished by Seattle Public Schools, an urban school district that also has roughly 47,000 students. Seattle is halfway through rebuilding their schools which, like ours, are older buildings with historic character (and failing systems) in
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 81 of 103 dense neighborhoods. The PPS budget, however, is lower than in Seattle as construction costs in this market are roughly 5.5 percent lower (exclusive of Washington’s sales tax) based on generally accepted industry sources.
Independent school construction cost estimators set the base construction costs for PPS’s budget.
Because few local school projects are comparable to the work PPS proposes, two independent cost estimators offered base construction costs for PPS budgeting. Both have extensive experience and expertise in K-12 construction. Those third-party cost estimators proposed a budget of $332 to $358 per square foot for rebuilding historic schools. PPS then shaved the cost closer to the lower amount for estimating costs in our budget. Brand new construction costs more than renovating.
Portland’s bond measure budgets include elements that other budgets sometimes omit. The PPS bond construction budget includes contingency funds to ensure projects come in on budget and that all costs are covered – preventing cost overruns and protecting the general fund budget for teachers.
An article in The Sunday Oregonian focuses on how our projected costs compare to the average costs of dissimilar school construction across Oregon. Costs of such different projects are not nearly as reliable a standard as the independent professional expertise of school construction cost estimators.
We hope you take the time to consider the full picture and complexities of the issue. For any of you who have had the opportunity to see even one of Seattle’s school renovations, you know what a fully modernized historic school can provide the neighborhood, teachers and most of all students who are seeking to compete in a truly global economy.
Much more information is posted online, and please, feel free to email me any questions or comments. Thank you for your interest.
(Ex. C1 at 82-84; emphasis in original.) The document included the following language in the footer, in part:
At Portland Public Schools, this is our goal: By the end of elementary, middle, and high school, every student by name will meet or exceed academic standards and will be fully prepared to make productive life decisions. ***. Portland Public Schools is an
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 82 of 103 equal opportunity educator and employer.
(Ex. C1 at 84.) The letter was sent out via email on April 2, 2011. Ames drafted the letter at her home on Saturday, April 2, 2011. She did not draft the letter while at work or during working hours. Essick did not prepare or edit the document. Mr. Cowie and C.J. Sylvester edited the document. Ames does not know if Mr. Cowie and C.J. Sylvester sought legal review of the document. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases indicating they violated ORS 260.432:
• Costs are in line with regional school districts • To the Portland Public Schools community: • will rebuild • while providing safety, structural upgrades • to ensure the construction and financing connected to the bond is accountable, transparent and appropriate • our school bond program • will provide safety • needed • our schools • we have laid • ensures we can deliver every project on time and on budget, as promised to voters • our pay-as-you-go financing plan • will save more than $200 million in interest payments • key points about our school construction budget: • Few other school districts – outside Seattle- have completed truly similar projects, meaning project-to-project comparisons inside Oregon are difficult to make. • Many other Oregon school districts, unlike PPS, have school construction bonds in place. • are full renovation • on tight urban sites in dense neighborhoods • They are outdated, with leaky roofs, inadequate electrical, plumbing and classroom equipment. • What we are proposing is different and more extensive than the work done in many other Oregon school districts. • modest remodel • Few if any other Oregon school projects included full earthquake retrofits, full modernization of schools or reconstruction in compact urban areas – with attention to retaining the historic character of the neighborhood. Earthquake safety upgrades alone can account for 15 to 30 percent of school construction costs. • The school construction projects in PPS are most similar to those that have been recently accomplished by Seattle Public Schools, an urban school district that also has roughly 47,000 students. Seattle
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 83 of 103 is halfway through rebuilding their schools which, like ours, are older buildings with historic character (and failing systems) in dense neighborhoods. The PPS budget, however, is lower than in Seattle as construction costs in this market are roughly 5.5 percent lower (exclusive of Washington’s sales tax) based on generally accepted industry sources. • Independent school construction cost estimators set the base construction costs for PPS’s budget. • Because few local school projects are comparable to the work PPS proposes • Brand new construction costs more than renovating. • Portland’s bond measure budgets include elements that other budgets sometimes omit. The PPS bond construction budget includes contingency funds to ensure projects come in on budget and that all costs are covered – preventing cost overruns and protecting the general fund budget for teachers. • An article in The Sunday Oregonian focuses on how our projected costs compare to the average costs of dissimilar school construction across Oregon. Costs of such different projects are not nearly as reliable a standard as the independent professional expertise of school construction cost estimators. • We hope you take the time to consider the full picture and complexities of the issue. For any of you who have had the opportunity to see even one of Seattle’s school renovations, you know what a fully modernized historic school can provide the neighborhood, teachers and most of all students who are seeking to compete in a truly global economy. • me • Thank you for your interest.
(Ex. F at 65-68; Test. of Cox.) On April 4, 2011, the letter was posted on the PPS website and entitled, “School construction budget based on independent professional estimates.” (Ex. C1 at 98-99.) Using the Manual, Ms. Corbin marked the following words and phrases indicating they violated ORS 260.432:
• School construction budget based on independent professional estimates • will rebuild deteriorated • while providing safety, structural upgrades and modernized learning environments • significant • to ensure • accountable, transparent and appropriate • will provide safety • needed updates
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 84 of 103 • our schools • we have • a budget that ensures we can deliver every project on time and on budget, as promised to voters • our • will save more than $200 million in interest payments • key points about our school construction budget • Many other Oregon school districts, unlike PPS, have school construction bonds in place. But most recent projects, especially in Portland’s suburbs, are new construction on open fields. • They are outdated, with leaky roofs, inadequate electrical plumbing and classroom equipment. • we are proposing is different and more extensive than the work done in many other Oregon school districts • Earthquake safety upgrades alone can account for 15 to 30 percent of school construction costs. • like ours • (and failing systems) • on generally accepted industry sources • Independent school construction cost estimators set the base construction costs for PPS’s budget. • two independent costs estimators • our budget • ensure projects • our projected costs • Costs of such different projects are not nearly as reliable a standard as the independent professional expertise of school construction cost estimators. • email me • Thank you for your interest.
(Ex. F at 82-83; Test. of Cox.) Ms. Corbin also marked a yellow “X” through paragraphs 2, 6, 8, 9, 11, 12 and 14 on the document. (Ex. F at 82-83.)
63. On or about April 7, 2011, Ames prepared an updated document entitled “Portland Public Schools Bond Measure: Seismic safety in PPS Buildings,” which provided, in material part:
Portland Public Schools is the largest public school district in Oregon, with 95 school buildings and more than 47,000 students. PPS buildings average 65 years in age; most were built in the 1920s, 1940s and 1950s, long before earthquake safety standards were in place. Only two schools have been built since such standards were implemented.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 85 of 103 Seismic safety is a high priority for PPS. Since 1995, the school district has evaluated and retrofitted school buildings across the district – allowing for safe exit from buildings in the event of an earthquake. The $548 million school facilities bond on the May ballot would bring nine school buildings up to modern standards and the [sic] increase structural integrity of five others.
Seismic work to date PPS has evaluated all schools and other buildings using national seismic guidelines.
A facilities bond – passed by voters in 1995 – included more than $47 million of seismic safety improvement work at 53 schools. Projects included constructing new lateral support walls, anchoring interior walls to roofs and reinforcing brick exteriors.
In 2009, PPS replaced roofs at nine school buildings – significantly increasing seismic safety. Roofs built to modern construction standards help stabilize the entire building by anchoring interior and exterior walls to a common structure.
What’s next? If approved, the proposed bond will continue the retrofit work, with 12 percent of the proposed funding dedicated to seismic safety.
Full earthquake-safety retrofits will occur at Cleveland, Jefferson and Roosevelt high schools, Faubion, Marysville, Laurelhurst and Rigler K-8 schools, and a new sixth-grade wing at West Sylvan will be built to current seismic structural code. Beverly Cleary K- 8’s Fernwood campus also will receive seismic retrofit work.
In addition, the school district will fully or partially replace roofs at four schools, which substantially increases earthquake safety.
Seismic improvements to almost all buildings are part of Portland Public Schools’ long-range modernization plan. Even schools with roof upgrades may need other seismic work.
*****
The $548 million bond measure would have a rate of about $2 per $1,000 of taxable assessed value, costing the median homeowner approximately $300 a year or $25 a month (half would pay more, half less). That rate continues for six years, then drops to about 15 cents per $1,000 of TAV for a period no longer than 20 years.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 86 of 103 (Ex. C1 at 100; emphasis in original.) Ames wrote the document by compiling information from the Office of School Modernization. Ames prepared the document during work hours. The document was posted on the PPS website as part of a package of materials. Ames also distributed the document at neighborhood meetings, along with other single-issue documents pertaining to safety and security measures, the cost to homeowners, and new high school fields. Essick did not prepare or edit the document. Mr. Condit reviewed and approved the document for PPS. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases on the document, among others, indicating they violated ORS 260.432:
• long before earthquake safety standards were in place. Only two schools have been built since such standards were implemented. • Seismic safety is a high priority for PPS. • modern standards • increase structural integrity of five others • increasing seismic safety. Roofs built to modern construction standards help stabilize the entire building by anchoring interior and exterior walls to a common structure. • will continue • seismic safety • will occur • will be built • will receive • will fully or partially • which substantially increases earthquake safety. • Seismic improvements • Even schools with roof upgrades may need other seismic work. • Costing the median homeowner approximately $300 a year or $25 a month (half would pay more, half less). • continues • drops • TAV
(Ex. F at 84; Test. of Cox.)
64. On April 11, 2011, a document entitled “Planning two budgets, depending on local option vote in May” was posted on the PPS website and provided, in relevant part:
Dear PPS Community,
We have known for a long time that next year would be tough for our schools – with the state economy, legislators deciding how much to cut and federal money drying up.
I will propose a budge for 2011-12 to Portland School Board on
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 87 of 103 April 25. While we have yet to finalize that proposal, I can offer a framework of the challenge ahead and we work to balance the budget.
First, the numbers:
1. Legislative leaders are proposing a $5.7 billion state budget, one billion short of the amount legislative analysts say would maintain current K-12 schools. 2. That leaves PPS roughly $40 million short of continuing all our General Fund services with roll-up costs (reductions in federal funding will also impact services).
All employees are making concessions, and made a shared sacrifice of foregoing cost-of-living adjustments. That reduces the shortfall by more than $6 million.
We will also be budgeting for our high schools based on teachers teaching six classes. This will mean a real reduction in staff for our high schools, but we can cut costs while preserving programs for students.
And the school board has referred a local option measure to the ballot – one that would maintain more than 600 teaching positions across all PPS schools, including 200 that would otherwise be eliminated under state budget reductions.
If voters approve the local option renewal, PPS will face a remaining shortfall of roughly $10 million. (This could be lower – further protecting classrooms – if legislators pass a larger K-12 budget.)
It is important as ever to set priorities and support those programs and services that show evidence they are vital to improving our students’ success. As we move through these reductions, there will be programs and services that people care about that we can no longer afford. We cannot keep pretending to do more with less.
We will let go of some valuable work, but what we keep, we must do well.
How will I propose closing the $10 million shortfall?
1. Central operational and administrative services will take more than their share of the reductions. I have already asked central managers to cut costs to yield savings for the rest of this
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 88 of 103 year; significant further cuts will be made in the next budget. 2. I will also recommend that we strategically use some of the money we have prudently set aside to protect our district’s finances. 3. More than three-quarters of our budget goes directly to schools. It pays for direct classroom needs – teachers, educational aides, classroom materials – as well as school administration, secretaries, counselors, librarians. I will have no choice but to propose targeted cuts to some services and staffing in our schools, and I will only do this as a last resort.
If the local option levy passes, we will maintain the core program at every grade, and with limited impact on class sizes in most schools and most grades.
The local option on the ballot would fund more than 600 teaching positions, including 200 that would be reduced under the proposed state budget. Those 200 teaching positions represent 10 to 13 percent of the staff in each school.
The renewed local option would help maintain enrichments, electives and class sizes. No proceeds go to administration, and all money would stay in Portland Public Schools; none goes to the state.
That’s what the levy would buy. What would it cost? The median homeowner would pay almost $300 a year, or $24.45 a month, $9 a month over the current rate.
On April 25, I will propose a budget with and without the local option funds, with and without those 200 teaching positions. The voters will decide.
All of us who want the best for our schools and students are exhausted by continually working harder with less. Together, we will keep our focus on what matters: our students and their success.
Carole Smith
(Ex. C1 at 20-21; emphasis in original.) The document included the following language in the footer, in part:
At Portland Public Schools, this is our goal: By the end of elementary, middle, and high school, every student by name will meet or exceed academic standards and will be fully prepared to make productive life decisions. ***. Portland Public Schools is an
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 89 of 103 equal opportunity educator and employer.
Portland Public Schools recognizes the diversity and worth of all individuals and groups and their roles in society. It is the policy of the Portland Public Schools Board of Education that there will be no discrimination or harassment of individuals or groups on the grounds of age, color, creed, disability, marital status, national origin, race, religion, sex or sexual orientation in any educational programs, activities or employment.
(Ex. C1 at 20-21.) Ames wrote the first draft of the document. Ames performed the work during work hours. Mr. Cowie wrote the second draft. Essick did not prepare or edit the document. Ms. Patterson reviewed and approved the document for PPS. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, indicating they violated ORS 260.432:
• Dear PPS Community • we • our • federal money drying up • I • Legislative leaders are proposing a $5.7 billion state budget, one billion short of the amount legislative analysts say would maintain current K-12 schools. • shared sacrifice of forgoing cost-of-living adjustments • budgeting for our high schools based on teachers teaching six classes • local option measure • remaining shortfall of roughly $10 million • if legislators pass a larger K-12 budget • there will be programs and services that people care about that we can no longer afford • We cannot keep pretending to do more with less. • We will let go of some valuable work, but what we keep, we must do well. • will I • Central operational and administrative services will take more than their share of reductions. • strategically use some of the money we have prudently set aside • I will have no choice but to propose targeted cuts to some services and staffing in our schools, and I will only do this as a last resort. • If the local option levy passes, we will maintain the core program at every grade, and with limited impact on class sizes in most schools and most grades. • 10 to 13 percent of the staff in each school
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 90 of 103 • What would it cost? The median homeowner would pay almost $300 a year, or $24.45 a month, $9 a month over the current rate. • The voters will decide. • All of us who want the best for our schools and students are exhausted by continually working harder with less. Together, we will keep our focus on what matters: our students and their success.
(Ex. F at 3-4; Test. of Cox.) Ms. Corbin drew a yellow line through the first page of the document, including through the pictures on the page (pictures of children, adults, a bridge, and a mountain) and the title of the document. (Ex. F at 3.)
65. On or about April 18, 2011, Ames printed out a copy of the intranet website entitled “Welcome to PPS Inside,” where various PPS stories are posted with a link that can be clicked on to view the document in full. The PPS Inside, provided, in pertinent part:
MEASURES TO UPGRADE SAFETY, CLASSROOMS IN SCHOOLS, PAY FOR TEACHING POSITIONS
Learn more about measures on the May 17 election ballot: the bond to update schools across the city and the levy to prevent cuts to over 200 teaching positions .
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Superintendent frames budget proposal April 11, 2011
Superintendent Carole Smith told the Portland School Board on Monday that she would present two versions of her operating budget for 2011-12, preparing for voters’ decision on the local option operating levy on the May ballot. [More]
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What goes into school construction budgets? April 4, 2011
What factors go into school construction budgets? See the links below for detailed analysis of school construction budgets.
Chief operating officer message on bond costs Cost estimates and budget by project
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Facilities bond budget in line with other school districts
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 91 of 103 April 4, 2011
Independent construction experts, experienced school construction managers help PPS estimate school project costs. [More]
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PPS faces $29 million shortfall under budget proposal March 29, 2011
Leaders of the legislative budget-writing committee have proposed a $5.7 billion state school fund for the next two years. What would this mean for Portland Public Schools? As in other Oregon school districts, budget cuts. PPS would need an additional $39.6 million to continue all current programs and services, taking into account rising costs. [More]
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Message from Carole Planning two budgets, depending on local option vote in May April 11, 2011
We have known for a long time that next year would be tough for our schools – with the state economy, legislators deciding how much to cut and federal money drying up. I will propose a budget for 2011-12 to the Portland School Board on April 25. While we have yet to finalize that proposal, I can offer a framework of the challenge ahead as we work to balance the budget. [Read more]
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School Facilities Bond Measure 17
PPS school campuses are community assets. Learn how you can help create smart, sustainable schools for our students and for our city.
(Ex. C1 at 91-96; emphasis in original.) The document included the following language in the footer:
Portland Public Schools recognizes the diversity and worth of all individuals and groups and their roles in society. It is the policy of the Portland Public Schools Board of Education that there will be no discrimination or harassment of individuals or groups on the
17 This is a box link that readers can click on to view the whole story. (Test. of Ames; Ex. C1 at 95.)
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 92 of 103 grounds of age, color, creed, disability, marital status, national origin, race, religion, sex or sexual orientation in any educational programs, activities or employment.
(Ex. C1 at 91-96.) Ames did not edit or post the documents on the intranet. Ames did not have content management authority over the documents on the intranet. Essick did not prepare or edit the documents. Christopher was responsible for updating the box links, including the Schools Facilities Bond Measure. (Test. of Ames, Essick; Ex. 17.) Using the Manual, Ms. Corbin marked the following words and phrases, among others, indicating they violated ORS 260.432:
• MEASURES TO UPGRADE SAFETY, CLASSROOMS IN SCHOOLS, PAY FOR TEACHING POSITIONS • cuts • Superintendent frames budget proposal • Chief operating officer message on bond costs • Facilities bond budget in line with other school districts • shortfall • need an • We have known for a long time that next year would be tough for our schools • cut • drying up • challenge ahead • School Facilities Bond Measure • PPS school campuses are community assets. Learn how you can help create smart, sustainable schools for our students
(Ex. F at 75-80; Test. of Cox.)
Mitigating circumstances
66. PPS is the client of Ms. Patterson, Mr. Condit, and Mr. Rogers. PPS has not waived its client confidentiality in this matter. (Test. of Ames.)
67. Ames and Essick are unable to obtain copies of any legally protected communications between PPS and its attorneys. ( Id .)
68. Ames and Essick are unable to provide the Division with any written statements from PPS’s attorneys establishing that they reviewed and approved the relevant documents found in violation by Ms. Corbin. ( Id .)
CONCLUSIONS OF LAW
1. Ames did not violate ORS 260.432(2).
2. A civil penalty in the amount of $75 should not be imposed against Ames.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 93 of 103 OPINION
The Division bears the burden of establishing by a preponderance of the evidence that the violations alleged in the Notice occurred, and that the proposed penalty is warranted. ORS 183.450(2) (“The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position”); Harris v. SAIF , 292 Or 683, 690 (1982) (general rule regarding allocation of burden of proof is that the burden is on the proponent of the fact or position); Metcalf v. AFSD , 65 Or App 761, 765 (1983) (in the absence of legislation specifying a different standard, the standard of proof in an administrative hearing is preponderance of the evidence). Proof by a preponderance of the evidence means that the fact finder is persuaded that the facts asserted are more likely true than not. Riley Hill General Contractor v. Tandy Corp ., 303 Or 390, 402 (1987).
Preliminary Matters
Counsel for Ames raised several preliminary matters that are addressed below, one of which obviates the need to address the merits in this case.
1. Whether the burden of proof is clear and convincing.
Ames contends that the burden of proof in this matter is clear and convincing based upon the usage of the phrase “clearly favors” in a letter issued by the Department of Justice to the Elections Division in 1993. I disagree with Ames.
On October 5, 1993, Donald Arnold, then Chief Counsel with the Department of Justice, issued a letter to Colleen Sealock, then Director of the Elections Division, which stated, in material part:
[W]e also have pointed out that “informational” material may be found to “promote or oppose” a measure even if it does not do so in so many words, if the information presented to the public clearly favors or opposes the measure and, taken as a whole, clearly is intended to generate votes for or against the measure.
(Ex. A1 at 47-51; emphasis added.)
As indicated above, Mr. Arnold is pointing out to Ms. Sealock how informational material can be found to promote or oppose a measure. Mr. Arnold states that “if the information presented to the public clearly favors or opposes the measure and, taken as a whole, clearly is intended to generate votes for or against the measure,” then it may be found to promote or oppose a measure. Mr. Arnold is not changing the burden of proof. He is simply explaining how informational material can be found to violate ORS 260.432.
Moreover, in the absence of legislation specifying a different standard, the standard of proof in an administrative hearing is preponderance of the evidence. Metcalf v. AFSD , 65 Or
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 94 of 103 App 761, 765 (1983).
Accordingly, I find that the usage of the phrase “clearly favors,” in the letter issued by the Department of Justice to the Division in 1993 does not create a clear and convincing standard of proof in contested case hearings involving the Division. Therefore, Ames’ argument is unpersuasive.
2. Whether the Division exceeded the scope of the inquiry.
Ames contends that the Division exceeded the scope of the inquiry by investigating matters that went beyond the complaints received by the Division. I disagree with Ames.
ORS 260.345 is titled “Complaints or other information regarding violations; actions by Secretary of State and Attorney General” and provides, in pertinent part:
(1) Any elector may file with any filing officer a written complaint alleging that a violation of an election law or rule adopted by the Secretary of State under ORS chapters 246 to 260 has occurred and stating the reason for believing that the violation occurred and any evidence relating to it.***.
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(3) Upon receipt of a complaint under subsection (1) or (2) of this section the Secretary of State or Attorney General immediately shall examine the complaint to determine whether a violation of an election law or rule has occurred and shall make any investigation the Secretary of State or Attorney General considers necessary.***.
(Emphasis added.)
Pursuant to the authority cited above, after receiving a written complaint, the Division is required to examine the complaint, determine whether a violation of election law or rule has occurred, and “make any investigation” that it considers necessary.
“Any” is defined as “unlimited in amount, quantity, number, time or extent: up to whatever measure may be needed or desired.” Webster’s Third New International Dictionary 97 (unabridged ed 2002).
Thus, the Division is authorized to investigate whatever matters it considers necessary. As such, the Division may expand the scope of its inquiry beyond the subject matter contained in the complaints that are received. Consequently, Ames’ argument is unpersuasive.
3. Whether two publications distributed by PPS are outside of the Division’s jurisdiction to review.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 95 of 103 Ames contends that two publications are outside the Division’s jurisdiction to review. I agree with Ames.
ORS 260.432 is titled “Solicitation of public employees; activities of public employees during working hours” and provides, in material part:
(2) No public employee shall solicit any money, influence, service or other thing of value or otherwise promote or oppose any political committee or promote or oppose the nomination or election of a candidate, the gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder while on the job during working hours. However, this section does not restrict the right of a public employee to express personal political views.
(Emphasis added.)
ORS 260.005(14) provides, in relevant part:
“Measure” includes any of the following submitted to the people for their approval or rejection at an election:
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(d) Local, special or municipal legislation.
(Emphasis added.)
A measure is submitted to the people for their approval or rejection when it is certified to the ballot.
Bond Measure 26-121
Bond Measure 26-121 became a “measure” for purposes of ORS 260.432(2) when it was certified to the ballot on January 6, 2011. In order to prevail, the Division must establish that Ames engaged in prohibited activities during the period of January 6, 2011 to May 17, 2011, the date of the election.
On December 8, 2010, a document entitled “Frequently Asked Questions: The PPS School Modernization Proposal” was prepared by Ames and posted on the PPS website. Ames prepared the document during work hours. Ames credibly testified that she completed the work in December 2010, prior to the date the bond measure was certified to the ballot.
Therefore, the document entitled “Frequently Asked Questions: The PPS School Modernization Proposal” is not within the Division’s jurisdiction to review. As such, Ames did
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 96 of 103 not violate ORS 260.432(2).
The Local Option Levy 26-122
The Local Option Levy 26-122 became a “measure” for purposes of ORS 260.432(2) when it was certified to the ballot on February 18, 2011. In order to prevail, the Division must establish that Ames engaged in prohibited activities during the period of February 18, 2011 to May 17, 2011, the date of the election.
On February 7, 2011, a document entitled “From the Superintendent” was issued to all PPS employees. Ames prepared the document during work hours. The document was distributed to PPS employees prior to the date the local option levy was certified to the ballot.
Accordingly, the document entitled, “From the Superintendent” is not within the Division’s jurisdiction to review. Consequently, Ames did not violate ORS 260.432(2).
4. Whether three publications distributed by PPS were not prepared or edited by Ames or were not prepared or edited by Ames during working hours.
Ames contends that there are three publications distributed by PPS that she did not prepare or edit, or that she did not prepare or edit during working hours. I agree with Ames.
ORS 260.432 is titled “Solicitation of public employees; activities of public employees during working hours” and provides, in material part:
(2) No public employee shall solicit any money, influence, service or other thing of value or otherwise promote or oppose any political committee or promote or oppose the nomination or election of a candidate, the gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder while on the job during working hours. However, this section does not restrict the right of a public employee to express personal political views.
(Emphasis added.)
On April 1, 2011, the Office of School Modernization issued a document entitled “Summary breakdown of school rebuilding projects within the proposed capital program bond budget.” Ames did not prepare or edit the document. Therefore, Ames did not violate ORS 260.432(2).
On April 2, 2011, C.J. Sylvester issued a letter entitled, “School construction budget is based on independent professional estimates; Costs are in line with regional school districts.” Ames drafted the letter at her home on Saturday, April 2, 2011. Ames did not draft the letter while on the job or during working hours. Consequently, Ames did not violate ORS 260.432(2).
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 97 of 103 The Division contends that pursuant to its Manual, the work that Ames performed was in an official capacity regardless of the time of day or location. The Manual provides, in part:
13. Salaried (Management) vs. Hourly Staff
Salaried employee’s work time is not as easily measured as that of hourly workers. If the work performed falls generally within the job duties of the public employee, then it is assumed that the work is performed in an official capacity, regardless of the time of day or location. ***. It is important to recognize that “regular workday” may not be definable for a position, or may not have a specific time period but is based on the activities and whether the person is acting, or appears to be acting, in an official capacity. ***. Another instance where the public employee is considered “on the job during working hours” is when a salaried, executive or management level public employee (or other level) uses what they consider personal time and personal equipment to prepare an official public agency publication that is to be distributed using public agency resources. Since in this case the public employee is conducting official agency business, the publication must be impartial or a violation would occur.
(Ex. A1 at 19.)
As stated above, the Division’s Manual indicates that a salaried employee’s work time includes work performed in an official capacity, regardless of the time of day or location. In addition, the Manual provides that a salaried, executive or management level public employee’s work time includes using personal time and personal equipment to prepare an official public agency publication that is to be distributed using public agency resources.
However, the plain text of ORS 260.432 states, “while on the job during working hours.” It does not state “while working at home in one’s official capacity,” or “while using personal time and personal equipment to prepare an official public agency publication to be distributed using public agency resources.” The Division’s interpretation of ORS 260.432 is overly broad. The Division is attempting to amplify the statute through the use of its Manual, an unpromulgated rule.
The interpretive amplification or refinement of an existing rule is a new exercise of agency discretion and must be promulgated as a rule under the APA to be valid. Burke v. Public Welfare Division , 31 Or App 161, 163 (1977). Because the Division did not promulgate a rule to amplify ORS 260.432, its use of an unpromulgated rule (the Manual) to do so is improper. See, e.g., Douglass v. Adult & Family Services , 64 Or App 439, 441 (1983) (attorney fee granted because the agency had no reasonable basis to rely on an unpromulgated rule, the AFSD staff manual). 18 Consequently, the Division’s argument is unpersuasive.
18 This analysis does not directly address, nor does it need to address, the question of whether the Division would be exceeding its authority to prepare rules that go beyond the statutory authority.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 98 of 103 On or about April 18, 2011, Ames printed out a copy of the intranet website entitled “Welcome to PPS Inside,” where various PPS stories are posted with a link that can be clicked on to view the document in full. Ames did not edit or post the documents to the intranet. Ames did not have content management authority over the documents on the intranet. As such, Ames did not violate ORS 260.432(2).
5. Whether the Division violated Ames’ Due Process Rights.
Ames contends that the Division violated her due process rights by failing to timely provide her with a copy of the April 2011 “marked up” version of Exhibit C1. I disagree with Ames.
The fundamental requisite of due process is the opportunity to be heard, to be aware that a matter is pending, to make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision-making body the reasons for such choice.
On or about April 8, 2011, Ames was notified that a complaint was received by the Division and that an investigation was pending. On August 25, 2011, Ames was issued a Notice of Violation. On or about October 20, 2011, Ames received a copy of the October 2011 “marked up” version of Exhibit C1. Although the October version of Exhibit C1 was not exactly the same as the April version, it was sufficiently similar to allow Ames to make an informed decision and prepare her case for hearing. Therefore, Ames was not prejudiced by the Division’s actions. Consequently, Ames argument is unpersuasive.
6. Whether the Division, by using the Factors in the Manual as the basis for the violations, amplified or refined an existing statute.
Ames contends that by using the Factors in the Manual, the Division improperly expanded the meaning of ORS 260.432. I agree with Ames.
ORS 260.432 is titled “Solicitation of public employees; activities of public employees during working hours” and provides, in material part:
(2) No public employee shall solicit any money, influence, service or other thing of value or otherwise promote or oppose 19 any political committee or promote or oppose the nomination or election of a candidate, the gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder while on the job during working hours. However, this section does not restrict the right of a public employee to express personal political views.
19 “Promote” is defined as “to contribute to the growth, enlargement, or prosperity of: further, encourage,” and “to bring or help to bring into being: launch.” Webster’s at 1815. “Oppose” is defined as “to offer resistance to, contend against, or forcefully withstand.” Webster’s at 1583.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 99 of 103 (Emphasis added.)
The Division has reasonably interpreted the standard set forth in ORS 260.432 (to neither promote nor oppose a measure) as requiring impartiality. 20 However, the Division’s decision in this case is not based upon its reasonable interpretation of the statute. Instead, the decision is based solely upon the unpromulgated rules in the Division’s Manual.
On April 26, 2011, Ms. Corbin reviewed the documents received from PPS. Using only the Manual, Ms. Corbin went through each document and highlighted words, phrases, titles, graphs and pictures that she believed violated the Factors in the Manual. Ms. Corbin subsequently prepared an Investigator’s Report that cited each Factor from the Manual that the PPS documents violated. Ms. Corbin concluded the report by finding as follows:
All of the reviewed documents fail to meet the required factors published in the Restrictions Manual to be an impartial document thereby supporting the passage of Ballot Measures 26-121 and 26- 122. By producing, publishing, distributing and/or posting these documents, PPS employees violated ORS 260.432.
(Emphasis added.)
On October 17, 2011, Ms. Corbin reviewed the documents from PPS for a second time. Using only the Manual, Ms. Corbin went through each document and highlighted words, phrases, titles, graphs and pictures that she believed violated the Factors in the Manual. Ms. Corbin subsequently prepared a letter to Ames that stated:
The documents I reviewed while investigating the complaints against Portland Public School employees are enclosed. The highlighted items do not meet the factors required to be an impartial document produced by public employees about ballot measures.
The documents are labeled with an exhibit number. To assist you in reviewing these documents a list of the factors is also enclosed. The list of factors is the document utilized to determine whether the documents produced by PPS employee[s] were impartial.
(Emphasis added.)
Ms. Corbin’s own words prove that she exclusively used the Factors in the Division’s Manual, an unpromulgated rule, to determine a violation in this case. Ms. Corbin clearly considered herself bound by the Manual’s provisions.
Accordingly, the evidence in the record establishes that Ms. Corbin used the Factors in
20 “Impartial” is defined as “not favoring one more than another: treating all alike: unbiased, equitable.” Webster’s at 1131.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 100 of 103 the Manual as the sole basis for her decision to find Ames in violation of ORS 260.432. The evidence further establishes that Ms. Corbin’s use of the Factors was an amplification of the statute at issue in this case, ORS 260.432.
The interpretive amplification or refinement of an existing rule is a new exercise of agency discretion and must be promulgated as a rule under the APA to be valid. Burke v. Public Welfare Division , 31 Or App 161, 163 (1977). Because the Division did not promulgate a rule to amplify ORS 260.432, its use of an unpromulgated rule (the Manual) to do so is improper. See, e.g., Douglass v. Adult & Family Services , 64 Or App 439, 441 (1983) (attorney fee granted because the agency had no reasonable basis to rely on an unpromulgated rule, the AFSD staff manual).
The Division contends that it may use its Manual as a reference or guide. However, as indicated previously, Ms. Corbin used the Factors in the Manual as the sole basis for finding the violation against Ames. Thus, the Division’s argument is unpersuasive.
Therefore, I find by a preponderance of the evidence that the Division’s conclusions were improperly reached in this matter. As such, the allegations contained in the Notice cannot be allowed to stand. Ames did not violate ORS 260.432. Ames will not be assessed a civil penalty in this matter. The Notice must be reversed. 21
ORDER
I propose the Elections Division issue the following order:
The Notice of a Final Determination and Intent to Impose a Civil Penalty; Contested Case Notice and Opportunity to be Heard, and Final Order by Default Imposing Civil Penalty if No Request for Hearing is Received dated August 24, 2011 is REVERSED.
Dove L. Gutman Senior Administrative Law Judge Office of Administrative Hearings
APPEAL PROCEDURE
This is the Administrative Law Judge’s Proposed Order. You have the right to file written exceptions and argument to be considered by the Elections Division. Your exceptions and argument must be received not later than 30 calendar days after the service date of this Proposed Order. The date of service is the day this proposed order was mailed, not the day you received it. Send them to:
21 If this matter had been decided on the merits, I would have found that Ames established a mitigating circumstance by presenting credible evidence that PPS had legal counsel review each of the documents in question.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 101 of 103 Elections Division 255 Capitol St NE, Ste 501 Salem, OR 97310-0722
If the Administrative Law Judge’s proposed order recommends a decision favorable to a party and the agency intends to reject that recommendation and issue an order adverse to that party, the agency will serve an amended proposed order on the party. The agency shall at the same time notify the party when and how written exceptions for the amended proposed order must be filed to be considered by the agency.
The administrator or designee will issue a Final Order that will explain your appeal rights.
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 102 of 103 CERTIFICATE OF MAILING
On May 8, 2012, I mailed the foregoing Proposed Order issued on this date in OAH Case No. 1102578 .
By: First Class Mail
Nancy Hungerford Attorney at Law PO Box 3010 Oregon City OR 97045
Alana Cox Secretary of State, Elections Division 255 Capitol St NE Ste 501 Salem OR 97310
Lynn Rosik Assistant Attorney General Department of Justice 1162 Court St NE Salem OR 97301
Carol Buntjer Administrative Specialist Hearing Coordinator
In the Matter of Sarah Ames , OAH Case No. 1102579 Page 103 of 103