A federal judge found Friday that the city of Corvallis had violated a city councilor’s right to free expression when it attempted to remove her from the council for pushing the city manager to hire a climate program specialist.
U.S. District Judge Ann Aiken issued an order prohibiting the city from taking any further action to remove councilor Charlyn Ellis from her municipal seat after concluding that two provisions of the city’s charter, upon which the city had attempted to remove her, were unconstitutional.
In addition to chairing the city’s Climate Action Advisory Board, Ellis served her fourth term on the city council and was reelected in November.
Ellis expressed worry during an advisory board meeting on September 13 that the city’s climate program specialist post was still unfilled and that the board lacked staff support to carry out its duties. The board decided to request that the city council instruct the city manager to advertise the position of climate program specialist for employment.
Five days later, Ellis moved the council to direct the City Manager to post the full-time climate program specialist position within two weeks and to keep the council informed of the hiring process until the position was filled, as advised by the advisory board.
According to the court judgment, Ellis’ motion was not approved after then-City Attorney James Brewer, who was present at the council meeting, told her that she could not order the city manager to do anything.
Ellis was called to a private conference with the city attorney, the mayor, and the president of the council on November 27. She was informed that she was being removed from her council seat representing Ward 5 because her remarks to the council and the climate action advisory board were against the city charter.
In November, Charlyn Ellis was elected to a fifth term on the city council of Corvallis.The City of Corvallis
According to a resolution backed by Mayor Charles Maughan, Council President Tracey Yee, Council Vice President Hyatt Lytle, City Manager Mark Shepard, and the city attorney, she was accused of violating the city charter by attempting to influence the city manager in a staff appointment through her remarks at the council session and the Climate Action Advisory Board.
The city referred to a clause in its charter called “Interference in Administration and Elections,” which states that neither the mayor nor any council member may try to pressure the city manager into appointing or dismissing an officer or employee or discuss, directly or indirectly, with the manager the issue of particular appointments to city offices or jobs.
Kerry J. Shepherd, the city’s attorney, argued in a court filing that Councilor Ellis tried to order the City Manager to do certain things, and a command is not a discussion.
In court documents, the city further contended that employment and other issues pertaining to city operations and administration are particularly the province of the city manager and are “incompatible with the role of a city councilor.” Shepherd argued on behalf of the city that Ellis could have contacted or met privately with the city manager regarding the status of the climate expert position, but her actions went beyond what was acceptable for a Council member.
Ellis had originally intended to step down, but after speaking with an attorney, she filed a lawsuit against the city in January and demanded a hearing against the city’s attempt to remove her off the council.
Since the Corvallis city charter specifically prohibits speech on the subject of employment with the city, Aiken determined that the clause the city used to try to remove Ellis from the council is an illegal content-based speech restriction.
The judge decided that, in its most basic form, the charter’s section addresses speech according to its communicative nature and the subject matter presented.
Additionally, Ellis was given $1 in nominal damages for the breach of her constitutional rights when Aiken determined that the city had unconstitutionally retaliated against her for exercising her protected First Amendment rights.
According to Aiken, the attempt to remove the plaintiff from the City Council is obviously an adverse action, and the plaintiff has shown proof of the conduct’s chilling impact.
The judge concluded that although the city’s charter aims to fight corruption through patronage and cronyism, its wording is overly broad and forbids a municipal councilor from using basic speech.
Messages asking for comments on the decision were not answered by Shepherd or the mayor of the city.
Jesse A. Buss, Ellis’ attorney, commended the ruling.
According to Buss, Ellis was just demonstrating her support for climate change. In a sworn affidavit, she stated that the role she and others wanted the city to serve would help Corvallis reach its goal for greenhouse gas emissions.
According to Buss, an elected official shouldn’t be fired for just carrying out their duties. She and the other council members were chosen by the electorate to set public policy and oversee the city manager’s work.
According to Buss’ email, Ellis, a teacher at a nearby high school, was only charged because she brought up the city’s need to recruit a climate program specialist and requested that the city council ask the city manager to begin the hiring process.
Thus, Councilor Ellis was merely carrying out her duties. And she nearly lost it for carrying out her duties.
— Maxine Bernstein writes about criminal justice and federal courts. You can contact her via [email protected], 503-221-8212, X@maxoregonian, or LinkedIn.
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