Judge Matt Shirtcliff in Baker County Circuit Court has granted a temporary restraining order to three plaintiffs in a lawsuit filed Tuesday, Sept. 12, preventing the three remaining Baker City councilors from appointing residents to fill the four vacancies.

Earlier Tuesday, the city’s contract attorney, Dan Van Thiel, told city officials he believes the city council, despite lacking a quorum of at least four councilors, has the authority to appoint people to fill the four vacancies.

Shirtcliff granted the temporary restraining order late Tuesday afternoon. He has not ruled on the merits of the lawsuit.

Judges can issue temporary restraining orders when the action the plaintiffs are seeking to prevent could cause them “irreparable harm,” a term used in the lawsuit filed Tuesday. Temporary restraining orders are limited to 10 days in Oregon.

Shirtcliff will now consider whether to issue a preliminary injunction, which would continue to prevent the council from filling vacancies. Shirtcliff scheduled a hearing on the lawsuit for 9 a.m. on Sept. 21 at the Courthouse, 1995 Third St., during which he will hear from attorneys on both sides.

Interim city manager Jon France said the council meeting scheduled for Tuesday was canceled, and that no other meeting has been scheduled.

Van Thiel sent a letter on Tuesday to France, who had sought Van Thiel’s opinion on the issue of whether the council, lacking a quorum, could fill vacancies.

Van Thiel wrote that Section 15 of the city’s 1952 charter “provides us, in my opinion, the roadmap to fill vacancies on its City Council. The existing Council is comprised of 3 members and it is my opinion that it is that group of individuals who have the authority on the City Charter. … to make appointments to fill these vacancies.”

Mayor Beverly Calder said Wednesday morning, Sept. 13 that she was “thankful” that Van Thiel concurred with her contention that Section 15 allows her and the two other remaining councilors, Jason Spriet and Ray Duman, to fill vacancies despite lacking a quorum.

Calder called the lawsuit “frivolous” and said it is preventing residents from lobbying the council about the public safety fee slated to take effect Oct. 1. The fee is $15 per month for residential water/sewer accounts, and $50 per month for commercial accounts.

The city had scheduled three public town halls, on Sept. 14, 19 and 21, to gather comments about the controversial fee. Calder said those town halls have been postponed but will be rescheduled when the council has a quorum. In the meantime, she said, councilors, lacking a quorum, can’t make any changes to the fee. Until that is possible, she doesn’t believe the city should put on the town halls.

Vance Day, a Powell Butte attorney who represents the plaintiffs, said he believes the council, by scheduling a special election, could fill the four vacancies and regain a quorum by the end of 2023.

The lawsuit

The plaintiffs in the complaint filed Tuesday are Jeffrey C. Blake, Joshua A. Connor and Kathrine L. Burnett, all registered voters in Baker City.

The defendants are Calder and the city council.

The complaint states that “registered voters in Baker City, including Plaintiffs, would be disenfranchised should Defendants be allowed to make appointments to vacant positions on the city council without the legal quorum required by the charter.”

The plaintiffs noted that the council had scheduled a meeting for Tuesday — it was, as

mentioned, canceled — at which they could potentially have appointed new members.

The lawsuit describes the situation as “clear intent to violate the provisions of the city’s charter by conducting a formal meeting without the required quorum.”

If the remaining councilors appointed any new members, the plaintiffs would suffer “immediate and irreparable injury, loss, or damage. …” the lawsuit states. Thus the plaintiffs sought a temporary restraining order and injunction.

Day, the plaintiffs’ attorney, said in a phone interview on Wednesday morning, Sept. 13, that he believes the legal precepts in this case are straightforward.

Although Section 15 of the city charter gives the council the authority to fill vacancies and doesn’t mention a quorum, Day said a city charter can’t be less restrictive, in the manner of filling vacancies, than state law.

He cites ORS 221.120, subsection 7, which states: “A majority of the members of the council shall constitute a quorum for action by the council.” If the city charter would allow the council to fill vacancies while lacking a quorum, then it would be less restrictive than the state law, Day contends.

Although the state law he cited doesn’t specify whether the reference to the council means its full contingent of members — seven, in Baker City’s case — or the number of current councilors, even if that’s fewer than the full complement, Day contends that the legal concept of “nullity” answers that question.

The idea, he said, is that if an interpretation of a law “makes no sense,” then it’s nullified, which is to say invalid.

In this instance, he said, if ORS 221.120, subsection 7, were interpreted to mean that the council could have any number of members, down to one, and still fill vacancies, that would not make sense. Because there can be no majority in a group of one, Day argues, that interpretation of the law — that fewer than four councilors could constitute a quorum legally authorized to fill vacancies — is not valid.

Lack of quorum

The question about whether the council, lacking a quorum, could appoint councilors arose after two councilors, Nathan Hodgdon and Johnny Waggoner Sr., simultaneously resigned on Sept. 6.

That left the council, which was already down two members from the August resignations of Dean Guyer and Boston Colton, with three members — Calder, Spriet and Duman.

Hodgdon contends those three councilors can’t fill vacancies. He cites two sections in the city charter, both of which mention a quorum.

Section 17 reads, in part: “Four members of the council shall constitute a quorum to do business.”

Section 20 reads, in its entirety: “The concurrence of a majority of a quorum shall be required to determine any matter before the council.”

But Calder contends that Section 15 of the charter gives the council, even lacking a quorum, the authority to appoint new members.

Section 15 reads: “A vacancy in the council shall be filled by appointment by a majority of the council.”

The section does not include the word quorum.

Hodgdon, who submitted a declaration in support of the lawsuit seeking a temporary restraining order, contends the city must schedule a special election to allow city voters, not the remaining councilors, fill the four vacancies.

He said that’s the reason he resigned Sept. 6 along with Waggoner — to ensure the council lacked a quorum and, in his view, would then be required to call a special election.

Hodgdon cites another section of ORS 221 — 222.160.

Section 1 of that law reads, in part: “Whenever because of death, resignation or other cause the number of the members of the governing body of any city is insufficient to constitute a quorum for the transaction of the business thereof, and the charter of such city does not otherwise provide, the mayor, or if there is no mayor, a majority of the remaining members of the governing body, may call a special election for the purpose of electing a sufficient number of persons to fill all the vacancies then existing in the governing body.”

In his letter to France, Van Thiel addresses the possibility of a special election.

He wrote that he reached two conclusions:

• “The governing body of this city needs to immediately return to a quorum.”

• “A Special Election will be at the City’s expense, and as a practical matter, will take an unduly amount of time to come into fruition.”

Van Thiel said in a phone interview Tuesday afternoon that he believes Section 15, because it is the only section in the city charter that deals with filling vacancies, is the deciding factor.

Sections 17 and 20 do require a quorum, but neither deals specifically with filling vacancies, he said.

Plaintiffs’ explain why they joined lawsuit

The three plaintiffs submitted declarations supporting the request for a temporary restraining order.

Blake wrote that he is a registered Democrat who is retired but “spent most of my working years in law enforcement related endeavors. I believe strongly in the rule of law, meaning that nobody is above the law — not law enforcement, not judges, not bureaucrats, and especially those who make the laws.”

Blake wrote that he read the city’s charter and believes it is clear that at least four councilors are required to “do any city business — plain and simple.”

“I am not one to cause a ruckus, but when I heard that the City Council was planning on appointing folks to the vacant councilor positions with less than a quorum, I decided I best look into it,” Blake wrote. “The remedy for this problem is for the Mayor to call a special election, to be held in November 2023. That appears to be the law. I am filing this case because everyone, including the present city council members, are under the law — not above it.”

Burnett wrote in her declaration that she is a registered non-affiliated voter. She wrote that she had read in the Baker City Herald that the three remaining councilors planned to appoint new members without a quorum.

“The act of publishing a plan to make appointments to vacant council positions without a quorum damages the public perception of city government because they are engaging in illegal acts,” Burnett wrote.

Connor wrote in his declaration that he is a registered Republican. He wrote that “I believe strongly in representative government and the right to elect our own representatives in free and fair elections. If the city council is allowed to appoint new members without a quorum, then voters will be denied their right to a special election under ORS 221.160.”

Former city manager Jonathan Cannon, who resigned in early July, also submitted a declaration supporting the complaint seeking a temporary restraining order.

“To conduct city business without a quorum is a basic violation of the law,” Cannon wrote in his declaration.

About 30 people, including three former city councilors who recently resigned, gathered outside Baker City Hall on Tuesday evening, Sept. 12, some offering prayers related to the debate over filling the four vacancies on the council.

The council had a meeting scheduled at City Hall at 6 p.m.

But interim city manager Jon France said the meeting was canceled.

About the time the group gathered at City Hall, around 5:30 p.m., Baker County Circuit Court Judge Matt Shirtcliff granted a temporary restraining order to three plaintiffs in a lawsuit who want to prevent the three remaining councilors from filling the vacancies.

Although none of the recently resigned councilors is a plaintiff, one, Nathan Hodgdon, who resigned Sept. 6, signed a declaration that was included with the lawsuit.

Hodgdon, who attended the gathering Tuesday, said he was pleased that the judge has at least temporarily blocked Mayor Beverly Calder and councilors Jason Spriet and Ray Duman from appointing new councilors.

Hodgdon repeated a point he made previously — that he resigned so the council would lack a quorum of at least four members, which he contends requires that the councilors instead schedule a special election to allow city voters to fill the four vacancies.

“I made it clear why I resigned, it was for this,” Hodgdon said. “If the people don’t want an election, then that would be one thing. But people clearly do and to deny them that is unconscionable.

“All in all, I think it’s a good day for Baker City and you’re going to have people waiting in the wings that just want to tear things up and they just can’t look beyond a left versus right binary,” he said. “But I think it’s wonderful. A coalition of a Democrat as the lead plaintiff, a Republican, and an independent coming together and saying we want an election, we want representation, and that does my heart good,” Hodgdon said.

Johnny Waggoner Sr., who also resigned on Sept. 6, also attended the gathering Tuesday.

He said he wants city voters to fill the vacancies.

“We need to give it back to the people and let them make the choices again for what they want and what they believe in,” Waggoner said. “Not just the few. But back to the citizens.”

Another former councilor, Dean Guyer, who resigned Aug. 11, also attended Tuesday’s gathering. Guyer resigned three days after the council voted to reinstate Calder as mayor, a decision Guyer opposed.

Like Waggoner and Hodgdon, Guyer said he thinks voters, not the three remaining councilors, should choose the four new councilors.

— Samantha O’Conner, Baker City Herald