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Hales and Fish want to appeal utility case ruling


Mayor Charlie Hales and Commissioner Nick Fish are asking the City Council to authorize appealing a judge's ruling in the long-running utility ratepayer lawsuit against the city before it is over.

Multnomah County Circuit Judge Stephen Bushong issued on ruling in several test cases agreed to by the lawyers representing ratepayers and the City Attorney's Office. Bushong has yet to rule on several other challenged appropriations, however.

In the test cases, Bushong ruled the council violated the City Charter when it appropriated some ratepayer funds for purposes not directly related to the missions of the Water Bureau and the Bureau of Environmental Services. Beshong upheld some of the appropriations, however.

On Wednesday the council will consider a resolution introduced by Hales and Fish, who in charge of the water and sewer bureaus, to appeal Bushong's ruling on the unauthorized appropriations to the Oregon Court of Appeals before he rules on the unresolved ones.

In his ruling, Bushong found that ratepayer spending must be "reasonably related" to the mission of the bureaus. The City Attorney's Office had argued the charter gives the council the authority to determine what is appropriate. Attorneys representing the ratepayers who brought the suit argued the the primary purpose of ratepayer spending should be the delivery of water and sewer services.

Among the questions yet to be resolved is whether the council can spend sewer funds on the Superfund Cleanup of the Portland Harbor, a project whose final cost has yet to be determined. The council has already authorized over $50 million of sewer funds to be spent on it.

The resolutions says that Bushong ruled the council violated the charges when it appropriated $462,000 in water and sewer fund for the now-defunct city public campaign financing program, and $530,000 in water funds for the Portland Loos.

The resolution notes Bushong ruled that $10.6 million in challenged expenditures were legal, however, including $4.43 million in water funds to relocate underground water pipes in connection with Phase I of the TriMet South Corridor light rail project and $6 million in sewer funds to pay approximately 53 percent of the purchase price of the River View Cemetery in Southwest Portland for stormwater management purposes. He also approved $88,624 in water funds to pay for the costs of connecting the loos to the water system.

Despite that, the resolution argues that Bushong's ruling "deprives the Council of reasonable discretion to make budgetary decisions and improperly allows courts to intrude on Council policy choices."

But ratepayer attorney John DiLorenzo says, “The council resolution says the court’s decision improperly allows courts to intrude on council policy decisions. But for our lawsuit and the court’s decisions to date, ratepayer funds would continue to be used to support pet projects like remodeling the Rose Festival Building, funding city council member’s campaigns for public office, and building Randy Leonard’s loos. The notion that courts have no power to hold the city council to the requirements of the City Charter shows how out of touch the City’s leadership is with those who are expected to pay the freight for all these programs.”

The resolution can be read at www.portlandonline.com/auditor/index.cfm?c=50265&a=517287