Last week, as promised, attorney Charlie Ringo filed a lawsuit on behalf of Bend resident and activist Foster Fell seeking to prevent Councilor-Elect Casey Roats from taking office. In last Tuesday's election, Roats won the largest share of the popular vote for City Council, Position 6.
The Nov. 5 lawsuit, which also names City Recorder Robyn Christie and the City of Bend as defendants, asks the Deschutes County Circuit Court to declare that Roats is not entitled to receive a certificate of election, alleging that he failed to meet the requirements set out in the City Charter—to be both a qualified elector and to have resided within the city limits for the 12 months preceding his election.
City Attorney Mary Winters said she has not yet discussed the lawsuit with City Council, but plans to do so during the executive session preceding the Council's Nov. 19 meeting. She added that she believes a declaratory relief action is "completely premature."
It's unclear whether Council will take on the issue. Though the City Charter names City Council as the "final judge of the election and qualifications of electors," some councilors have previously expressed reluctance toward being the deciding body. Mayor Jim Clinton told the Source that the issue may be out of Council's hands.
"This issue is now before the court, so I don't have any comment until a judge issues a decision," Clinton said. "I think it very unlikely the Council will take up this issue until such a decision is released."
Roats told the Source he was caught off guard by the lawsuit, and thinks any decision on the matter should be made by Council.
"I didn't expect it at all. I thought the City Council would take up the issue if a formal complaint was issued," Roats said. "I would rather see it handled within the system. The City Charter is incredibly clear."
If City Council does take on the question of Roats' qualifications, his former opponent Ron "Rondo" Boozell doesn't think any councilors who endorsed a candidate in the race for Position 6 should weigh in.
"It is my opinion that each City Councilor that used his or her position on Council during this election to endorse or promote or campaign publicly for a City Council Candidate has compromised their ability to select without bias a resident qualified to fill a vacancy on council, or determine qualification that might create that vacancy," Boozell wrote in a statement.
Boozell, who came in third place out of four candidates with close to 8 percent of the vote, added that if Roats is found to be ineligible, councilors who made endorsements should also recuse themselves from appointing a replacement, and instead hold a special election.
"I ask for a special public ballot to be printed as soon as possible, so the residents of Bend may choose between the remaining qualified candidates that appeared on the November 4th ballot," Boozell wrote. "If a candidate is found to have not met the residence requirements, then the November ballot and the voting results from that ballot are skewed, and unrepresentative. If this is the case, then the people of Bend have been robbed of a fair election, and a true choice based on their values and judgment."
Roats' opponent Lisa Seales, who came in second, has also faced questions about her residency. Though Seales has lived and worked in Bend since 2010, some claim she maintained legal residency in Florida in order to qualify for in-state tuition and property tax exemptions. The Florida Board of Governors and Alachua County Property Appraiser are looking into the allegations but have not confirmed any evidence that would contradict Seales' claims of residency in Bend.
"It's OK for City Council to have to make these decisions from time to time," Roats said, noting that residency can be somewhat fluid. "When the facts of the case are heard by the Council I think they are going to be left with no doubt about my residency.... For all intents and purposes, I never left the City of Bend for residency purposes."
Roats, who admitted to living outside the city limits for close to 12 months while he was building a new home in Bend, said he believes that state election law is on his side, and that the statutes have "leniency" for people in his situation.
But the lawsuit doesn't only take issue with whether or not Roats' met the requirement to "have resided" in the Bend city limits, it also addresses the second qualification—to be a "qualified elector."
The complaint alleges that Roats failed to submit an accurate voter registration card because the address he gave was not habitable at the time that he gave it.
"On June 30, 2014, Roats changed his voter registration to 61200 Brookswood Blvd. As stated above, this was a house under construction, not his residence. This voter registration card submitted by Roats was not accurate," the complaint argues. "As a result, he is not entitled to receive a certificate of election."
A complaint has been filed with the Secretary of State regarding concerns Roats may have knowingly provided false residency information when he registered to vote at two addresses where admits he did not physically reside—his business address and the address of his under-construction home—and when he gave the unfinished home's address on his candidacy filing form. Roats told the Source he did not physically reside in the city limits from Oct. 2013 to Oct. 2014.
If the Secretary of State's office finds cause for concern, it will refer the case to the Oregon Department of Justice. Communications Director Tony Green told the Source the Secretary of State's office has not yet concluded its investigation.
Ringo, the attorney behind the lawsuit, said he served Roats with a subpoena on Thursday requiring his attendance at a deposition, tentatively scheduled for Nov. 12 at the offices of Bryant Lovlien & Jarvis. Neil Bryant is Roats' attorney. (Full disclosure: the Source has used this law firm's services.)
Fell, who is also the partner of Councilor-Elect Barb Campbell, said he agreed to serve as the lawsuit's plaintiff because he wants to clarify the residency questions that overshadowed the race for Position 6. (Campbell won the election for Position 7.)
"It seems there's a lot of clarification that needs to be made. We shouldn't have to go through this emotional upheaval again," Fell said. "My main interest is that, just to help make things a little clearer."
Roats said he's "not at all" concerned about the possibility of being found ineligible by the City Council or the Deschutes County Circuit Court.
"My long term concern is making sure people don't get scared away from being a part of the public process," Roats explained. "I feel as though someone's attempting to bully us out of the race. The intent is to wear me down but they aren't going to."