Dale v. Myers

951 P.2d 727, 326 Or. 356, 1998 Ore. LEXIS 11
CourtOregon Supreme Court
DecidedJanuary 29, 1998
DocketSC S44478; SC S44482
StatusPublished
Cited by1 cases

This text of 951 P.2d 727 (Dale v. Myers) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dale v. Myers, 951 P.2d 727, 326 Or. 356, 1998 Ore. LEXIS 11 (Or. 1998).

Opinions

[359]*359FADELEY, J.

Petitioners separately challenge the ballot title proposed by the Attorney General for an initiative petition. This court consolidated their challenges for argument and decision. Both petitioners are electors. The arguments presented to us concerning deficiencies in the proposed ballot title were included in their comments on the initial draft ballot title and therefore properly are before us. See ORS 250.085(6) (in general, requires elector to submit related written comments to the Secretary of State before this court may consider elector’s arguments challenging ballot title on those points).

The Attorney General certified the following ballot title:

“AMENDS CONSTITUTION: STATE AND LOCAL GOVERNMENTS MUST CONTRACT OUT CERTAIN GOVERNMENT SERVICES
“RESULT OF YES’ VOTE: Yes’ vote requires governments to accept certain lower-cost bids to perform government services.
“RESULT OF ‘NO’ VOTE: ‘No’ vote keeps system under which governmental services may, but need not, be contracted out.
“SUMMARY: Amends constitution. Currently, state and local governments may, but need not, contract out certain functions to private sector. Measure generally requires governments to accept, or submit to voters at next election, private sector or other government bids to provide same or similar services for 20 percent less. Governments annually must measure, publish, quality and cost, including employee compensation, of providing each service. Core government functions exempted; other services exempted by 2/3 vote of each house, Governor’s approval. Forbids union contracts restricting contracting out. Other provisions.”

Both petitioners challenge the “yes” and “no” result statements. Petitioner Sizemore also challenges the sufficiency of the caption, but does not challenge the summary. Conversely, petitioner Dale does not challenge the caption, but does challenge the summary.

[360]*360The proposed measure for which the ballot title is to be used would amend the constitution. A general understanding of the text of some of the changes that would be made by the proposed measure is necessary to a consideration of the challengers’ arguments.

The measure would adopt a plan for transferring a current governmental service to a private entity that may propose to perform that service.1 Each such proposal to transfer services initiates a two-step process.

In the first step, a private entity that does not presently provide the governmental services in question approaches the agency of government that does provide that service and makes a proposal to transfer the provision of the service from the government agency to the private entity. The measure accomplishes that transfer through subsection (2)(a), which provides that “[a] private sector entity may submit a bid to provide the same or similar service” as that provided by the government entity.

The government entity then compares the cost that is promised by the private entity for providing each unit of the service with a precomputed and published governmental cost for each unit. That comparison is to be conducted in the manner directed by other provisions of the measure. The measure contains instructions and definitions concerning computation of the government’s cost, and other instructions for calculation of the private entity’s cost to perform the same functions. Subsection (6) requires that, for purpose of the comparison, government costs be stated in terms of an hourly wage rate for the government to provide the service. That hourly rate is required to include the cost of health insurance and retirement benefits, if any are provided by either the government or the private entity. The comparison is used to determine whether the private entity proposal promises to provide a savings in comparison to government costs. The measure prohibits the legislature from passing laws regulating hourly wage rates that might impact the calculations of [361]*361hourly cost that the proposing entity would pay to its workers to provide the service.

The measure’s directions for making the cost comparison also require that whatever governmental facilities are presently used to provide the service must be made available to the private entity. The calculated cost to the government must be increased by adding market rental rates to that cost for those facilities, together with an additional assumed amount for taxes that a private party who owned the government facilities would have to pay.

When a service is to be transferred to a private sector entity, “the land, buildings and equipment shall be made available to [the entity] for rent or lease at market value.” Subsection (7). Thus, the cost comparison may be based only on the assumption that the private entity is using publicly owned facilities at that rental amount. No costs associated with transferring the service for the first year of the transfer are to be included in the comparison of costs; that is, the mandates of the initiative apply whether or not cost savings are realizable in the first year of the transfer of services. Subsection (2)(b).

After the proposal is received and the cost comparison is made, the government agency may “accept the private sector bid,” if doing so “could reasonably be expected to provide the service” at one of the rates of savings stated in the measure.2

If the government entity that now is providing the service does not “accept the bid” (i.e., does not accept the private entity’s proposal to perform the service), a second step is required under the measure.3 In that step, the government entity shall “submit to the voters at the next election the option of contracting out the provision of the service to the lowest bidder that could reasonably be expected to provide [362]*362the service” at the stated savings rate. The measure requires that the ballot title for that election contain information clearly disclosing the “percentage and amount of money which would be saved by contracting out the provision of the service.”4

Only when three prerequisites are met does the proposed measure “require” a government entity to accept a proposal to transfer the service to a private entity. The third of those prerequisites is stated in subsection (19) as: “the voters must have approved the [transfer of the] service.”

The measure provides for exempting a few services from the measure’s coverage and provides a mechanism for temporary exemption of others. Another of the prerequisites is that the legislature has not exempted that particular service from transfer to a private entity. Subsection (13)(a).

The measure would add those provisions and others to the state constitution and authorizes private actions in court to enforce the measure.

We turn to a consideration of petitioners’ challenges to the ballot title. Captions must identify the “subject” of a measure. ORS 250.035(2)(a).

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Cite This Page — Counsel Stack

Bluebook (online)
951 P.2d 727, 326 Or. 356, 1998 Ore. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dale-v-myers-or-1998.