Mayor’s Residency Discussion Fact Check
To clarify both the information and timeline presented during the discussion on the mayor’s residency, I watched and transcribed the November 8 regular session at hour 1:38 to the end at 2:06 several times.
Since the emails to council from the mayor on October 3 (in which she quotes Councilor Spegman’s September 23 email) and from Luke Belant at the Secretary of State’s office in response to Councilor Spegman query had been made part of the public record, I was able to access those emails along with information about the sale of the mayor’s house from the County. All this information is public. To understand how we got to where we are now, a timeline of how it unfolded is helpful.
Simmons said that her home sold in September. However, the property is listed in the Tillamook County property database (document number 2023-003467) as sold August 7, 2023. She and her husband bought a home in Wilsonville on August 10, 2023 (Clackamas County property database document number 2023-028696).
Simmons gave the address of a friend’s home on Dorcas where she now stays when in town.
Simmons said she shared her situation with two neighborhood groups and at a Mayor Monday but she didn’t contact any of her colleagues on Council until October 3 after her residency was put on the agenda.
On September 23, Councilor Spegman emailed Simmons:
hi, Deb – I have asked Leila to place the question of your residency on the agenda for the October 4 meeting so that the council can determine, under ORS 236.010 and Charter sections 12(3) and 32, if you should remain in office.
Like others, I was expecting you to clarify your situation at either the September
meeting or work session, if not sooner. We cannot wait any longer as we will soon have
the results of the investigation and we’ll have to decide as a council how much, if any,
we should share with the public, and then determine next steps in that process
I regret that we have to deal with this in such a formal and perhaps adversarial manner.
You may well have facts to share which could warrant a different approach and/or
outcome, but you have not been forthcoming to date. Let me know if you would like to
discuss this prior to the October meeting. Jerry
At the November meeting when Spegman asked Simmons why she didn’t speak with anyone on council earlier, she said she was moving and had a personal health crisis with her husband. She said she believed that as a volunteer she had a right to keep private her situation. The private reasons for her move were not the subject of concern, but her residency is. Simmons moved in August but it wasn’t until her residency was put on the agenda that she alerted council with the October 3 email.
Simmons states in that email and in her remarks at the November meeting that she spoke with several authorities to confirm her residency—the county elections clerk, Luke Belant in the Secretary of State’s office and with her personal attorney, who then contacted the city attorney. Simmons said at the meeting and in the email of October 3 to council that she was assured by these authorities that she was resident of Manzanita in good standing.
Her October 3 email reads:
When I moved .3 of a mile from Treasure Cove Lane to Dorcas Lane in Manzanita, I registered my new residence with the City Hall as to the advice from our city manager.
In addition, I spoke with the Secretary of State Election’s Division, Deputy Director, Luke Belant. He was familiar with the prior research, reviewed my questions on residency and felt my residency was valid. Further, my attorney notified the facts of my move to the city attorney, James Walker. Mr. Walker said there is no issue with my residency as long as I registered it with the City Hall, and added he would advise the city council of his opinion.
Completing my process, I maintain the same mailing address at the Post Office, notified the DMV of my change of address who, they informed me, notified the election clerk of Tillamook County. I am, without question, a resident of Manzanita in good standing.
Here is Luke Belant’s email response to Councilor Spegman’s query about Simmons email. Following a phone conversation Spegman sent Belant Simmons email and he responded:
From: BELANT Luke * SOS <luke.belant@sos.oregon.gov> Sent: Thursday, October 5, 2023 1:11:58 PM To: Jerry Spegman <jspegman@ci.manzanita.or.us> Subject: FW: ATTENTION: Luke Belant
Thank you for providing a copy of this statement after our phone conversation. After reading the statement, I want to clarify a few things that may have been misconstrued.
The Elections Division does not provide formal validation of residence for voters via verbal communication or otherwise. It is not our role to do so.
The Tillamook County Clerk is responsible for Investigating the registration of a voter and making a determination of residency.
If an individual believes a violation of election law has occurred, they are encouraged to report a violation to the Elections Division. To view information about the types of investigations conducted by the Elections Division, and to submit a report, please visit:
sos.oregon.gov/elections/Pages/election-law-violation.aspx
At hour 1:53 when discussing the mayor’s residency James Walker, the city attorney, stated, “I want to be clear, that the question that was presented to me with respect to the mayor’s residency was a narrow question, about conceptually if someone moves from one location within a city to another location within the city, does that sole fact on its face impact that person’s residency and the answer is no…”
But there are two separate issues concerning residency. The first is residency as it pertains to voting. I’ve included the rule which most applies here.
ORS 247.035 Rules to consider in determining residence of person for voting purposes.
(c) A person shall not be considered to have gained residence in any location in this state into which the person comes for temporary purposes only, without the intention of making it a person’s home.
Besides a current driver’s license and post office box an elections official may also consider where utilities are paid and, “Where any immediate family members of the person resides.”
Simmons said that her husband is living in the Portland area to be close to medical facilities.
The second issue regarding residency is as it pertains to members of an existing governing body. Under the Charter a vacancy can occur in a few self-executing ways—death, committing a felony and loss of residency. The action creates the vacancy.
Spegman pointed out that until now, no member of the governing body has tried to remain in office after moving. He pointed out that Councilor Mayerle resigned when he moved out of town and his seat was filled by a resident. Council has a duty under the Charter to resolve the issue, if they find that a vacancy has occurred.
At the 1:52 mark, Walker says the Charter supports council’s ability to be the final judge of the qualifications of its members and that includes residency. When pressed to weigh in, he made clear that it’s not the city attorney’s role to determine what the qualifications of members of the governing body are or the residency of its members.
When asked if there are any ramifications by ignoring the residency of the mayor Walker said, “Well, I would say that one item the council should be mindful of in looking at the residency question—it’s important to carry out that responsibility because it can impact the effectiveness of certain decisions that the governing body makes. It’s important that every member of council is a resident for voting purposes. If there are votes conducted for example that have non-residents it could impact the efficacy of the vote, if it’s a close split and concerns the underlying efficacy of decisions made by council.”
What that means is if a councilor or mayor becomes a non-resident and votes on something contentious like the Manzanita Lofts and the decision is a close split, the city could face legal trouble.
Allowing a non-resident to hold a seat on Council also sets a precedent for the future. What would the ramifications be for the City?
At the end of the meeting, it was decided that Council will meet in executive session to receive legal analysis and advice from Walker. Simmons is out of the state until December 4.
The next Council meeting is December 6.
If you weren’t able to watch the meeting, I encourage you to do so.
https://youtu.be/cEWAkDSTeCE
(you might need to cut and paste)
Kim Rosenberg loretta.kim.rosenberg@gmail.com