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Baker County Circuit Court Judge Matt Shirtcliff said Thursday, Sept. 21, that he expects to issue a written decision within about two weeks on a civil lawsuit seeking to block the three current Baker City Council members from filling four vacancies.

Shirtcliff heard oral arguments from attorneys during a hearing that started at 9 a.m. at the Courthouse and lasted a bit more than one hour.

“I’ve spent a lot of time on this case and I’ve got more work to do,” Shirtcliff said at the conclusion of the hearing, which attracted an audience of about 30 people. “I will do my best.”

Shirtcliff, who issued a temporary restraining order on Sept. 12, the day the suit was filed, prohibiting the councilors from appointing new members, said Thursday he would issue a preliminary injunction that continues that prohibition.

He said the injunction will be in place only until he issues his written decision. Under Oregon law, temporary restraining orders can be in place for no more than 10 days.

Shirtcliff said he issued both the temporary restraining order and the injunction because if the council were to take actions, including appointing new members, that could cause “irreparable harm” to the plaintiffs because “you can’t undo” certain decisions.

Shirtcliff emphasized that he will be ruling on the specific issue of whether the three councilors, one short of a quorum, have the authority to fill vacancies.

The question involves interpretations of both the city’s 1952 charter and state law, as well as previous court cases.

Shirtcliff noted that the situation involves other factors, including why councilors Johnny Waggoner Sr. and Nathan Hodgdon resigned on Sept. 6, creating the current lack of a quorum, and how the inability of the current council to take any action, including filling vacancies, could affect city operations such as hiring a city manager and dealing with a budget shortfall.

But Shirtcliff emphasized that he won’t be considering any of those factors in reaching his decision. He said his ruling will be based on the charter and statutes.

“And that is all I’m going to consider,” he said.

The hearing

Three Baker City residents, Jeffrey C. Blake, Joshua A. Connor and Kathrine L. Burnett, filed the suit Sept. 12, naming as defendants the city council and Mayor Beverly Calder.

Calder, along with Jason Spriet and Ray Duman, are the three remaining councilors after Waggoner and Hodgdon resigned. Two other councilors, Boston Colton and Dean Guyer, resigned in August.

Hodgdon said he resigned to force the council, lacking a quorum, to schedule a special election in which city voters would fill the vacancies.

Blake, Connor and Burnett all attended Thursday’s hearing. Their attorney, Vance Day of Powell Butte, participated by phone.

Calder also attended, along with her attorney, Steven F. Cade of Portland. The city’s attorney, Dan Van Thiel, participated by phone.

Day, Van Thiel and Cade each reiterated many of the points they made in written filings with the court.

Although their arguments touch on multiple parts of the city charter and of state law, the basic disagreement involves Section 15 of the charter.

The relevant part of the section reads: “A vacancy in the council shall be filled by appointment by a majority of the council.”

(The rest of the section deals with the length of the term of appointed councilors.)

Day, representing the plaintiffs, contends that two other sections, 17 and 20, both of which mention a “quorum,” are vital, and that the absence of that word in Section 15 doesn’t mean the council can fill vacancies without a quorum of at least four current councilors.

Van Thiel argued that Section 15 “says what it means, and means what it says.”

The phrase “majority of the council” in Section 15 means a majority of the current members, Van Thiel contends, whether that number constitutes a quorum.

He urged Shirtcliff to “leave the charter alone” and not “judicially amend” the document.

Cade, representing Calder, cited a 1962 Oregon Supreme Court case involving the city of Toledo, near Newport.

Cade argued that the case, known as the Gruber case for the name of the defendant, sets a precedent for a city having a different voting requirement for filling vacancies — a majority of the current members rather than a quorum — even if other parts of the city’s charter do mandate a quorum.

Day disagreed, saying that the Gruber case doesn’t set a precedent for superseding a city’s quorum requirement.

Shirtcliff said that although there is little case law dealing with such situations, he agreed that the Gruber case has “some facts that are remarkably similar” to the Baker City situation.

Judge discusses hypothetical limits on council’s authority

Shirtcliff posed to Cade a hypothetical scenario that the judge said was consistent with the city council’s and Calder’s interpretation of Section 15 of the charter.

Shirtcliff described a situation in which there were five current councilors. In that scenario, the judge asked, could the council have a meeting in which only three members attended, and could those three councilors make what he described as “major decisions” such as firing a city manager or filling vacancies?

Cade’s answer was that yes, the three councilors could do so.

Shirtcliff described Section 15 of the charter as “vague.” He noted that if the authors of the charter had intended that filling vacancies was the one decision councilors could make without a quorum, the authors “could have put it in there.”

Shirtcliff also asked Cade why, given the language in Section 15, the charter’s Section 20 says a quorum is required for “any matter before the council.”

Cade argued that the charter’s authors contemplated the possibility of the council lacking a quorum, and that they intentionally omitted “quorum” from Section 15 but from no other sections that deal with voting requirements.

Cade also pointed out that the charter deviates from the basic quorum requirement in one other section — 22, subsection e. That subsection, which deals with the powers given to an interim (or pro tem) city manager, states that the interim manager can’t hire or fire city employees “except with the approval of five members of the council.”

In other words, for that one action, the council must have not just a quorum, but a super-majority of at least five members concurring.

Day also cited Section 22 in the charter, but a different subsection — b.

That subsection, which deals with the council hiring a city manager, states, in part, that the manager “may be removed at the pleasure of a majority of the council.”

Day argued that based on the defendants’ interpretation — that majority of the council means a majority of the current members, regardless of how many, rather than a majority of the full complement of seven — a single councilor, if only one was in office, could conceivably fire the city manager.

“That doesn’t make any sense,” Day said. He argued that that subsection of the charter is the “coup de gras” to the defendants’ argument.

“You can’t make decisions without a quorum is the bottom line,” Day said.

Plaintiff discusses joining lawsuit

One of the three plaintiffs, Joshua Connor, said after the hearing that he decided to join the lawsuit because he believes Calder and the two other councilors, in arguing that they can fill vacancies without a quorum, are not following the law but seeing “what they can get away with.”

Connor, who said he has lived in Baker City for a couple of years, thinks it’s reasonable that when, for instance, the council has a single vacancy, that the six remaining councilors appoint the replacement.

Having a special election to fill every vacancy that occurs shouldn’t be necessary, he believes.

But with more than half the positions vacant, as is the case now, Connor said he believes voters should choose the new councilors.

“I remain committed to being an advocate for our community. I will always strive to support and create opportunities for public input and to work for solutions that are best for the community as a whole — no matter the outcome.

It is important to me that citizens should have the opportunity to question and comment upon all of the revenue generating options.”