Ellis' charter violation case continues as legal fees cross $100,000

Ellis' lawsuit seeks to halt a process that would see her removed from office. A proposed resolution introduced in December accuses her of violating the city charter when she made a motion during a September meeting asking the city manager to fill an open position at City Hall.

In her lawsuit, Ellis argues the charter clause in question violates her free speech rights.

The city, on the other hand, claims her motion was an attempt to interfere with the city manager's duties, an accusation that, should a majority of the City Council agree, would have her forfeit her seat. The city argues the charter rightfully concerns itself with Ellis' conduct, not her speech.

So far, the city has spent more than $100,000 in defending the suit, which has since been moved to federal court.

In a motion filed March 7, the city of Corvallis is asking a federal judge to grant it summary judgment in its favor, meaning a request to find that Ellis has no case. 

In the court filing, the city argues that the charter section in question neither violates Oregon Constitution nor the First Amendment, and that Ellis "cannot meet her burden of demonstrating that she engaged in protected conduct sufficient to sustain a claim for First Amendment retaliation."

How we got here

The accusations began in November 2023 after Ellis said she was called into a meeting with council leadership and the former city attorney. She was informed she had violated charter Section 23(f) by directing the city manager twice  —once during a council meeting and previously at a meeting of the Climate Action Advisory Board, which she chairs — to fill a vacant staff position. The position aids in the work of the advisory board.

Ellis reportedly agreed to resign but reneged, the city asserts, and a resolution declaring her seat vacant was pulled from the Dec. 4 council meeting.

Instead, the city said it would allow her to defend herself at a due process hearing, which was scheduled, then rescheduled several times before a federal judge officially stopped the city from holding it pending her litigation.

The suit was filed Jan. 22 at the Benton County Circuit Court, but the city had the case moved to federal court a couple of weeks later. 

Beyond the injunction, Ellis asks the court to void the Section 23(f) altogether because it represents an unconstitutional restraint on speech.

The city's motion

In the city's March 7 motion for summary judgment, the city argues that the part of Section 23(f) of the Corvallis charter that calls any "attempt to influence or coerce" the city manager a violation is constitutional on its face because the language does not focus on the content of speech.

"Here, the substance or subject of the communication is not an issue; rather, it is the effect of the speech — attempted influence or coercion — that is the issue," the motion reads.

The city’s attorneys argue the "influencer or coercion clause" in the charter language is narrow enough to survive judicial scrutiny. To violate the clause, the argument says, "a councilor must specifically intend to influence or coerce the manager in specific terms," and this is not protected conduct.

The motion also argues that Ellis' speech was not protected as the speech was incompatible with her official function.

"Here, the impaired responsibility is of a city councilor not to violate the separation of power principles clearly laid out in the charter by usurping the manager’s authority over hiring decisions," the motion reads.

With regards to Ellis' claims of First Amendment retaliation, the motion argues similarly saying: "Because the 'influence or coercion clause' is neither unconstitutionally overbroad in every conceivable action nor prohibits such a broad range of conduct as to be unconstitutionally overbroad, it is not facially invalid."

The clause, the motion argues, leaves "ample avenues for communication for city councilors who wish to communicate with the manager regarding staff or hiring matters."

While councilors have First Amendment protections, the city's legal papers say, making motions, which is a mechanism of city government, is not expressive conduct and not entitled to those protections.

The motion asked the judge to grant the city relief and dismiss all of Ellis' claims with prejudice.

Legal costs so far

Since the case began in December, the city has incurred through the month of February $116,578.7 in legal fees.

In December, on advice of the former city attorneys, the council voted 7-2 to hire an outside firm to take up the charter violation case, allowing the City Attorney's Office to remain in an advisory role throughout the case for fairness.

Both Ellis and Councilor Paul Shaffer voted "no" on the motion.

The city contracted Portland-based law firm Markowitz Herbold PC to handle the case. Kerry J. Shepherd, a shareholder of the firm, is the lead attorney on the case.

Here's a breakdown of the legal costs from December to February as contained in submitted invoices obtained through several public records request.

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