OFFICE or THE SECRETARY OF STATE ELECTIONS DIVISION STEPHEN N. TROUT DIRECTOR DENNIS RICHARDSON SECRETARY OF STATE LESLIE CUMMINGS, DEPUTY SECRETARY OF STATE 255 CAPITOL STREET E, SUITE 501 SALEM, OREGON 97310-0722 (503) 9864518 Notice of Proposed Civil Penalty; Opportunity to Request Hearing In the matter of violations of 260432 by Jason Vetter 1/23/2017 Case Number: 16-119 Jason Vetter 21950 NE Palisade Place Fairview, OR 97024 DearJason Vetter: This letter constitutes Notice of Proposed Civil Penalty. Please read the information below carefully and contact our office if you have any questions about its contents or necessary actions on your part. Reason for Notice: This notice is being sent because the Secretary of State, Election Division has determined that Jason Vetter has violated provisions of election law. Authority for Civil Penalty: The Secretary of State has the authority to impose Civil penalties in accordance with ORS 260.432, ORS 260.995, OAR 165-013-0020 and the Restrictions on Political Campaigning by Public Employees Manual, OAR 165-013-0030. Notice of Matters Asserted 8: Charged: 1. During the date and time of November 8, 2016 at issue, you were employed as a Deputy at the Multnomah County Sheriff?s Office, located in Multnomah County, Oregon. 2. At approximately 1:00 pm on November 8, 2016, near SE Morrison and 11th St. in Portland, Oregon, while on duty in an official capacity and in uniform, you were a passenger in a Clearly marked official Multnomah County Sheriff?s Office work crew vehicle which drove past electors standing in line to vote at the Multnomah County Elections Office for the November 2016 General Election. 3. Your partner, Deputy LaRae M. Ross, drove the vehicle in which you were a passenger. At this location, and during this time period, there was a large number of electors standing in line, waiting to vote. The line went from within the county elections office to around the corner. You saw that you were driving by a place to vote. You used the clearly marked official IVICSO work crew vehicle?s public announcement system, and chanted ?Trump, Trump? while driving down the street and past the line of electors. Donald Trump was a candidate for the office of United States President. Members ofthe public, in line to vote, heard you chant the name ofa presidential candidate. There were several other candidates on the ballot for that office, and you only chanted one candidate?s name. Some of those who heard you had concerns regarding your actions and questioned whether it was legal. Several individuals complained about your actions to either the MCSO or the Secretary of State?s Office. Prior to November 8, 2016, as a Multnomah County Sheriff?s Officer, you received several e- mails instructing you about ORS 260.432 and the prohibitions against political advocacy for public employees while on the job. a. On August 30, 2016, at approximately 10:38:19 am, Multnomah County Sheriff Mike Reese ("Sheriff Reese?) sent an email, directed to all Multnomah County Sheriff?s Officers, with the subject line ?2016 Elections Law Reminder?. in the body of Sheriff Reese?s e?mail, he stated: "As the fall election cycle begins, the County Attorney, Jenny Madkour, sent out a reminder below related to restrictions for elections and political activities for public employees. Additionally, attached you will find general guidelines Central Labor Relations provided for public employees and allowed activities in the workplace.? MCSO employees were informed that they could contact their supervisor with questions. In addition, below the e?mail from Sheriff Reese was the original e-mail from County Attorney Jenny Madkour. Her e?mail stated: ?With the election season underway, please familiarize yourself with the restrictions on public employee campaigning and election law requirements. The overriding principle is that public employees may not use County time or resources to support or oppose elections petitions, candidates, political committee or ballot (Emphasis in original.) ?The following resources contain a complete list of the restrictions on political activity and include examples of allowable and prohibited activities: ORS 260.432 Quick Reference and Secretary of State?s Handbook.? She noted, ?Please be aware that violations may result in personal liability, fines, and disciplinary action.? Both the referenced manuals were linked in the body of the e-mail. She also invited anyone with questions or concerns about possible violations to speak with a manager or supervisor, or contact the Oregon Secretary of State, Elections Division, and provided a phone number. b. On November 7, 2016, at approximately 1:42 pm, Lieutenant Chad Gaidos Gaidos?), Public Information Officer for the IVICSO, sent an email to ?All with the subject line ?Election Process Protocol?. In the body of that e-mail Lt. Gaidos stated: "Tomorrow is Election Day and it is important to remember that as members of a non? partisan organization, we must remain neutral in our political stance while representing the an agency we respect the right to vote and the voting process, therefore cannot speak to personal opinions with regard to the ballot.? Determination You violated ORS 260.432 by engaging in political advocacy while on the job during working hours as a public employee. The Secretary is the chief elections officer, and it is his responsibility to obtain and maintain uniformity in the application, operation, and interpretation of election law. ORS 246.110. The Secretary may also adopt rules necessary to facilitate and assist in achieving and maintaining maximum degrees of impartiality. ORS 246.150. Oregon Administrative Rule 165-013-0030 adopts the Restrictions on Political Campaigning by Public Employees manual (?Manual?). The purpose of the Manual is to interpret ORS 260.432. ORS 260.432 applies to candidates ?as soon as the person becomes a candidate under the definition in ORS (Manual at 4). "Oregon election law does not specify any amount of work time that may be used before a violation occurs, so a public employee may be found in violation even though they used a minimal amount of work time.? If an individual engages in prohibited activity, he has violated the statute. 260.432 does not restrict the right of a public employee to express personal political views during their personal time. However, it does restrict some verbal communication while on the job during working hours (or while acting in an ?official (Manual at 7.) public employee cannot give a speech or a presentation advocating a political position if they are on the job or acting in their official capacity.? (Manual at 8.) The actions which are prohibited under ORS 260.432 while on the job, during working hours, are those which "support or oppose measures, candidates, recalls, political committees or petitions.? The Secretary of State's Office, through its Elections Division,- has found that you engaged in political advocacy. You chanted the name ofonly one candidate for the office of United States President in an area that was a county elections office, and you were aware of that fact. Further, you chanted the name through the public address system that amplified your voice to send your message in support of a candidate. This enabled your voice to carry your message to a larger audience than could be reached through use of your voice alone, even if you had shouted. Similar to giving a speech in support of a candidate, chanting the name ofonly one candidate in this context is a form of advocacy. (See Manual, page 8.) The chant occurred outside an elections office where electors were visibly queued up to vote on the office of the United States President (the same office for which you chanted the candidate?s name) and were within earshot of your chant. The chant was deliberately made louder by your use of the public address system. Even though you did not chant "vote for?, the chant was only for one of many candidates. Through your action, you supported this candidate for the office. Your action was political advocacy. The Secretary of State's Office has also found that you were on the job during working hours when you engaged in this political advocacy. You were an on?duty police officer, riding in a clearly marked, official MCSO work crew vehicle. You purposefully availed yourself of the use of government property and county resources available only to MCSO officers to send your message in support of a candidate, by using the public address system to amplify your chant and support of the candidate. This was not an expression of personal political view during personal time. (See Manual, page 7.) Therefore, the Elections Division finds that you did engage in prohibited activities to support or oppose a candidate while you were on the job during working hours as a public employee and thereby violated ORS Proposed Civil Penalty: The Secretary is proposing a civil penalty of $75.00 pursuant to Appendix to OAR 165-013-0020. Reduction or Waiver of Penalty: A reduction or waiver ofthe penalty will be considered only if one of the following mitigating circumstances is present: (1) The Violation' Is a direct result of a valid personal emergency of the involved person(s A valid personal emergencyis an emergency s_uICh as a serious personal illness or death In the immediate family. of the involved person(s). PerSonalI'emerge'ncy does not include a common cold or flu orIa'long term I illness where Other arrangements oeuld have been made. In this case", independent written 'verifiCation must be provided; - - (2) The violation is the direct resIult ofan: Ie_rr_0r by an electiOns officer; (3) The violation IisIthe direct result of fire, flood or other calamitous event, resulting in phySical destrIICtion Of, or inaccessibility to any records required to be kept to document compliance with Oregon election law. 'CalIamitous event" means a phenomenon of an exceptional character the effects Iof which could net have been reasonably prevented or avoided by the exercise of due Care or foresight); (4) The IviIolaItion 260. 432 occurred after a publication produced and distrIbuted by a governing body relating to a ballot measure was reviewed by the governing body' _5 legal Counsel before its__ . distribution. The legal counsel must have IadVised the governing body In writing or by email Ithat the draft publication was impartial information that the I_goVerning body could legally produce and I diStributeThe) 260. I432 occurred ?after a publication produced and distributed Iby a gdverning body relating to a ballot measure was reViewed by the Secretary of State' office,I Elections Division. The secretary Iof State must have advised the governing bOdy In writing that the pUblicatiIon as drafted Was impaIIrtialI information that the governing body could legally peruCe and distribute Or for Which I . suggestions were proVided toWarIds the goal of assuring the publication was impartial information regarding the ballot measure. If Ithe Secretary Iof State issued an advice letteIrIIwith suggested changes, the gaverning body must have sUbStanItially folloIWed the advice provided. HoWeVer this mitigating factor may be disalloINed even if suIch IaInIIadIince letter was iss_,ued if a complaint and investigatiOn indicates sufficient evidence that the public body presented inaccurate or unbalanced information not Within the purview of this office to have knowledge Of prior to the complaint thChI has the effect of promoting or opposing the adoption of the measure; (6) The violation of ORS 260.432(2) oCcurred, but the public employee had voiced their objection to the person who coerced, Commended or required the employee to perform the prohibited campaign activity during their work time. Despite the stated objection, the person was still required to perform the activity that violated ORS 260. 432(2); or (7) The violation of ORS 260. 432(2) occurred when a superviSor asked the public employee to perform the prohibited campaign activity, consisting .of clerical tasks, as a part ofthe public empIOyee? sjob duties dUring work time. A ?request" made by a supervisor is considered a command or requirement within the meaning of ORS 260. 43.2(1) If the violation inVOlves a written doCument, the public employee performed clerical tasks only and' Is not the authOr ofthe material. Opportunity to Request a Hearing: You have the right to a hearing before an administrative law judge with the Office of Administrative Hearings. You have 20 days* from the date of service on this letter to take one of the following actions: Action Result Do not take any action. Your failure to file timely transactions will be considered a violation of Oregon election law. A final order by default imposing the civil penalty may be issued against you. The Secretary designates the agency file on this matter as the record for the purpose of proving the prima facie case. OAR 165-001-0025. Payment may be made to the Secretary of State prior to the issuance of a final order by default. Complete and sign the Hearing Request Form A public hearing will be scheduled within choosing eitherthe personal appearance or 45 days and you will be notified of the date and telephone hearing option. The hearing will be time by the Office of Administrative Hearings. If, conducted by an independent Administrative Law after the hearing is scheduled, you subsequently Judge with the Office of Administrative Hearings. determine that you do not want to attend the hearing, you may choose to submit written notarized testimony and other evidence in lieu of appearing in person at the hearing. Those documents must be received not later than three business days before the day of the hearing. Complete and sign the Hearing Request Form and The agency will refer your testimony and the choose the notarized testimony option. By Division's testimony to an independent choosing this option you are waiving your right to Administrative Lanudge with the Office of a personal appearance ortelephone hearing. Administrative Hearings. You have the right to submit rebuttal testimony to the agency not later than five business days from the date of service of the agency's testimony (the date the testimony was emailed or mailed.) OAR 165-001-0034. (*If the 20th day falls on a Saturday, Sunday or holiday, the deadline to request the hearing is the next business day.) Active duty servicemembers have a right to postpone proceedings under the federal Servicemembers Civil Relief Act (SCRA) and may contact the Oregon State Bar at (800?452-8250) or the Oregon Military Department (800-452-7500) for more information. Servicemembers may also visit the United States Armed Forces Legal Assistance Legal Services Locator at for more assistance. lfyou have questions about any part of this notice, please contact me at 503-986?1518. Sincerely, JWW Aleea Sharp Investigations and Legal Specialist DATE of Service: 1/23/2017 Enclosures: Restrictions on Political Campaigning by Public Employees?0R5 260.432 Manual Appendix Penalty Matrix Notice of Contested Case Rights and Procedures Hearing Request Form c: Elizabeth Porter Via E-Mail Only betsy.porter@gmail.com Multnomah County Sheriff's Office Attn: Lieutenant Travis Gullberg 501 SE Hawthorne Blvd., Suite 350 Portland, OR 97214 Sent VIA Electronic Mail Karen Clevering, AAG Oregon Dept ofJustice General Counsel Division Gov?t Services Section Karen.clevering@state.or.us