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By RAELYNN RICARTE
News staff
writer
The City of Hood River is making good on its
warning that attorney fees would be sought if opponents of the
gas tax were defeated in their legal bid to overturn the
election.
On Monday, the city mailed off a court
petition asking for $41,739.35 in costs associated with the
defense of Mayor Arthur Babitz and the “will of voters.”
“Pleased be advised that the city believes
that such a lawsuit would be frivolous and a waste of taxpayer
money and that, when the contest fails, the city will seek to
impose any sanctions available and recover from your client all
costs, disbursements and attorney fees due the city,” wrote
attorney Alexandra Sosnkowski in a letter dated Oct. 5, 2009.
She e-mailed that document to the office of
Paul Romain, executive director of the Oregon Petroleum
Association, one day before his client, Bob Palmer, a Hood River
resident, filed the lawsuit. Also representing Palmer is
Portland attorney Margaret Schroeder.
Just days before the Jan. 19 trial was to
begin, Palmer requested that Judge Donald Hull dismiss the
lawsuit “with prejudice” so that it could not be re-filed. Hull
granted a general judgment of dismissal on Jan. 26, which
allowed the city to proceed with its request for repayment of
costs.
Palmer and Romain declined comment on Monday
about the latest development in the case because it is a pending
legal matter. They would not answer a reporter’s question about
whether it would be Palmer or OPA reimbursing city expenses if
directed to do so by a judge.
Although Babitz also declined comment on the
case, City Manager Bob Francis did not hesitate to express his
frustration.
“There was absolutely no merit to this
lawsuit and we tried to bring that to the attention of the
plaintiff before he initiated a court action that required us to
spend money that we didn’t have,” said Francis.
“If somebody would have walked into my office
and sat down with me to go over the facts, then this whole thing
could have been avoided and a lot of taxpayer dollars would have
been saved.”
Tom Sponsler, a Portland attorney
specializing in government law, was hired to represent the city
in the case.
In his request for reimbursement of costs,
Sponsler cites Oregon law that allows the respondent in a
contest to recover expenditures as the “prevailing party.” He
argues that the city has won the lawsuit because the petitioner
filed it but then backed away.
Sponsler contends that Palmer was forced to
withdraw his legal challenge because he had no evidence that
wrongdoing had taken place.
The attorney said Palmer racked up bills for
the city by fighting against the municipality’s motion to have
the case dismissed for lack of cause shortly after it was filed.
Sponsler said the petitioner’s legal team then placed further
demand on city resources by requesting a large volume of
documents that had to be compiled and reviewed.
Sponsler said Palmer’s lawyers created
further expenditures by deposing four city officials: Babitz,
Francis, Public Works Director David Bick and Public Works
employee Dave Smock.
“…Petitioner’s unsupported assertions in his
complaint were objectively unreasonable and the city’s efforts
to dismiss and otherwise defend against the groundless
accusations were reasonable in light of the critical important
of the gas tax to the city’s municipal finances,” wrote Sponsler
in his Feb. 1 brief.
He said the city was in a state of fiscal
crisis at the time the council approved the 3 cent per gallon
gas tax. He said the estimated $280,000 per year in new revenue
was needed to pay for transportation-related projects.
“Because the gas tax revenue was critical,
the city had no choice but to incur defense expenses to protect
the financial integrity of its street fund.
“The dismissal, while positive for the
respondents, came after the expenditure of scarce public funds
and significant city time and expense that would have been
unnecessary if the petitioner had more objectively and
reasonably considered his claim initially or dismissed his
petition at an earlier stage,” stated Sponsler.
Palmer’s lawsuit accused Babitz and one to 10
unnamed city employees of unduly influencing the outcome of the
election. The gas tax vote was tied 806-806 following the Sept.
15 vote. The fate of the tax was then decided by nine ballots
that had been challenged by county elections officials because
the signatures did not match voter registration cards.
The end result of those ballots being
validated and counted was that the tax was approved by three
votes, with 812 in favor and 809 opposed.
Palmer had worked with Romain and other local
opponents of the tax to bring the issue before voters after it
was approved by the city council in late May of 2009. The
council had decided to allow the electorate to weigh in on the
issue in November but citizen activists wanted the vote to take
place as soon as possible.
After the election was over, Palmer claimed
that Babitz had unduly influenced the results by “coercing”
workers into advocating for the tax while on the job, a
violation of state election law.
In addition, he argued that the city allowed
campaign signs advocating for the tax to be posted on utility
poles around town; a violation of the municipal nuisance law.
Sponsler is now arguing that Palmer should
not be allowed to say “never mind” at a late stage in the
lawsuit without reimbursement of “needless legal expenses” by
the city.
“Such a result is unjust and violates the
purpose and the meaning of the election contest and statutes,
and it punishes local governments while attempting to fashion
lawful mechanisms to fund essential public services and
facilities during a time of financial crisis,” wrote Sponsler.
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