Letter Sent to City.

Mayor, Council and City Administrator.

Now I see in this council packet that $3,851.50 for the 911 Antenna Structure work Brown and Kysar did, was paid for from the municipal power and light fund.

That is a violation of Oregon State Law!!!

Just as the theft of the tower was from a citizen and putting it up on land without permission from the landowner. Both of which the city refuses to pay for its use.

So now it seems that this tower fiasco, employees of the city got us into appear to be leading to more unlawful actions to clean up the mess.

So let me remind this council and let this new city administrator know that the municipal power and light fund is a GASB Statement 54 restricted use fund.

It is a restricted use fund because there are state laws that specify how the revenue from that fund can be spent.

1-The City must comply with Oregon Statutory law concerning rate regulations.

ORS 225.210
Compliance with rate regulations
Each city which owns and operates an electric light and power system or which distributes electric energy for hire, shall charge such rates therefor as meet the requirements of ORS 225.220 (Enforcement of statutory requirements) to 225.300 (Privilege of filing for use of state waters).

2-In the case of this city the council is charged with observing and enforcing the Oregon Statutory laws concerning rate regulations.

ORS 225.220
Enforcement of statutory requirements
(1) The requirements of ORS 225.210 (Compliance with rate regulations) to 225.300 (Privilege of filing for use of state waters) shall be enforced and observed by that officer who by the charter is charged with the administration of any electric light and power plant or distributing system owned or operated by the city.
(2) As used in this section, officer includes board or other public authority of the city.

3-Rates are to be set in accordance with estimates of annual expenses and not for any other municipal purposes. 

ORS 225.230
Rates set in accordance with estimates of annual expenses
(1) The officer referred to in ORS 225.220 (Enforcement of statutory requirements) shall annually before January 1, make a written estimate of the probable expense of maintaining and conducting the electric light plant or distributing system during the next ensuing year, including the cost of any contemplated alterations, improvements, additions or extensions, together with the probable amount necessary for redemption of any unpaid warrants and the interest thereon, as well as the amount required for payment of interest and maturing principal on any outstanding bonds of the city issued for or in connection with any such electric light plant or distributing system.
(2) The officer shall thereupon ascertain and prescribe as near as can conveniently be done an electric current rate or rates for the ensuing year which will create a fund sufficient to meet all requirements in subsection (1) of this section.
(3) The officer may also include a further amount sufficient to create such fund, as in the judgment of the officer may be desirable or necessary to meet requirements of future contemplated additions, improvements or extensions to the plant or system.

4-Earnings of the municipal power and light fund cannot be used for other municipal purposes which this 911 communications tower clearly is. 

ORS 225.250
Application of earnings
The earnings of the electric plant or distributing system shall be applied and used in payment of warrants and interest thereon issued in connection with operation of any such plant or system, and also in payment for alterations, improvements, additions or extensions and for redemption and retirement of outstanding bonds, together with interest thereon, and shall be expended only in connection with and for improving such plant or system and not for other municipal purposes, except as otherwise provided in ORS 225.270 (Use of surplus earnings).

5-Even if the city had surplus earning the city could not use them to pay for this debt. All the law allows is using surplus revenue to reduce property taxes or re-adjust the rates.

ORS 225.270
Use of surplus earnings
When any city which owns or operates a municipal electric power plant or system or distributing system, has paid principal and interest to date on all indebtedness incurred in connection therewith, and has created and accumulated an adequate depreciation and replacement reserve in the judgment of the officer having control of such plant or system, the city shall, for the purpose of reducing general property taxes within such city, pay to itself not less than three percent of the annual gross operating revenue of such plant or system, or a volumetric charge based upon the amounts of electricity delivered, transmitted or distributed to retail electricity consumers regardless of the source. The volumetric charge shall not be less than the equivalent of three percent of the gross operating revenues of the municipality utility in 1999. The city shall adjust a volumetric charge to end users such that charges established for different customer classes bear the same approximate relationship as the gross revenues per kilowatt hour paid by the classes in 1999. [Amended by 1999 c.865 §32]

These are duties imposed upon the council by law.

Failure to observe and enforce these laws is a crime.

ORS 162.415

Official misconduct in the first degree
(1) A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another:
(a) The public servant knowingly fails to perform a duty imposed upon the public servant by law or one clearly inherent in the nature of office; or
(b) The public servant knowingly performs an act constituting an unauthorized exercise in official duties.
(2) Official misconduct in the first degree is a Class A misdemeanor.

That said if the city truly believes they can interpret this as they wish not so fast.

City of Grande v. Public Employees Retirement Board. 281 Or. 137, 576 P.2d 1204 (1978).

In La Grande, Justice Hans Linde wrote for the majority that when it comes to substantive laws, state law presumptively trumps a conflicting local rule or ordinance. Id. at 156, 576 P.2d at 1215.

Accordingly, localities’ home rule autonomy is limited to procedural matters where the state has no

substantive interest. Id. at 156, 576 P.2d at 1215.

Like I said earlier a GASB Statement 54 restricted use fund.

This 911 communication tower has nothing to do with our rights to fair rates set in accordance to the law and the right that the city does not spend revenue of the municipal power and light company for other municipal purposes in violation of these state regulatory laws they shall by law observe and enforce as well as the chief financial officer complying with GASB Statement 54 rule compliance concerning governmental bookkeeper’s accounting, insuring money is not expended in violation of these rules.

Now I and every municipal power and light rate payer have a right to our rates being set in accordance to the law.

You cannot take a slim cent from this fund for other municipal purposes without it being factored into the annual rate setting process as required by law.
Therefore if you do not return this money taken from the municipal power and light company fund without delay you violate our right to fair and reasonable rates set in accordance to the law.

Title 18, U.S.C., Section 242

Deprivation of Rights Under Color of Law
This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

If two or more of you fail to follow the law and vote or approve of this taking of money from the municipal power and light company now knowing this action would be in violation of the law, that could well constitute a conspiracy to financially injure and oppress our quality of life?

Title 18, U.S.C., Section 241

Conspiracy Against Rights
This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

So take that $3,851.50 and return it to the municipal power and light fund without delay.

Then the $1,838.54 budget deficit in the $60,000.00 Electrical Department System Evaluation that was budgeted will leave that fund in the black with a $2,012.96 balance.

So I see only two choices here.

1-Observe and enforce the statutory laws of the state of Oregon concerning municipal power and light companies and return these monies to the municipal power and light company fund.
2-Knowingly and intentionally violate the laws.
That choice is yours to make.

Which leaves me with just a few questions concerning this matter that justify an answer to the rate payers and consumer owners.

1-Since this stolen tower issue or this work on that stolen tower has never been an action item on an agenda and it is clearly over any city employees spending limits just who authorized this?

2-Has it been paid and if so who authorized the city financial officer to pay this debt from the municipal power and light fund in violation of State Law and GASB Statement 54, concerning the use of revenues of the municipal power and light company?

3-As I do not see resolutions attached in this packet authorizing any of the expenditures for this “Electrical Department System Evaluation”. Resolutions which have clear language specifically stating the needs and purpose of not only the “Electrical Department System Evaluation”, but all these other expenditures far and above what was specifically budgeted for the rate study alone that I know about and above the spending limits of any city employee I ask if they do so exist to disclose them to me.

Thank you for your time in this matter.

Michael “Cody” Steelman

Citizen, rate payer and consumer owner (stake holder) of the municipal power and light company.
Cc: The blog and many citizens who share my belief on this subject.