Bill Text: OR HB3304 | 2013 | Regular Session | Introduced

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Bill Title: Relating to county clerks; prescribing an effective date.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3304 Detail]

Download: Oregon-2013-HB3304-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3420

                         House Bill 3304

Sponsored by Representative BARNHART

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Creates Commission on Fitness of County Clerks to appoint
county clerks, hold hearings upon complaint concerning conduct of
county clerk and censure or remove county clerks for cause.
  Takes effect only if House Joint Resolution 32 (2013) is
approved by people at next regular general election. Takes effect
on effective date of constitutional amendment proposed in House
Joint Resolution 32 (2013).

                        A BILL FOR AN ACT
Relating to county clerks; creating new provisions; amending ORS
  202.110, 204.005, 204.010, 204.016, 204.020, 204.112, 204.126
  and 249.091; and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) There is created the Commission on Fitness
of County Clerks consisting of:
  (a) Three judges appointed by the Supreme Court;
  (b) Three persons appointed by the Board of Governors of the
Oregon State Bar from among persons admitted to practice law in
this state; and
  (c) Three persons appointed by the Governor who are not
qualified under paragraph (a) or (b) of this subsection.
  (2) The term of a member is four years, but whenever a member
ceases to meet the qualifications under which the member was
appointed, membership shall end. Before the expiration of the
term of a member, a successor shall be appointed to perform the
functions of a member on the day next following expiration of the
term of the member. In case of a vacancy for any cause, the
appointing authority shall make an appointment to become
immediately effective for a four-year term.
  (3) Appointments by the Governor are subject to confirmation by
the Senate in the manner provided in ORS 171.562 and 171.565.
  (4) The commission shall select one of its members as
chairperson, and another as vice chairperson, for such terms and
to perform such functions as the commission shall determine.
  (5) A majority of the commission constitutes a quorum for the
transaction of business.
  (6) Official action by the commission requires the approval of
a majority of the members of the commission.
  (7) A member of the commission is entitled to compensation and
expenses as provided in ORS 292.495. + }

  SECTION 2.  { + (1) The Commission on Fitness of County Clerks
shall:
  (a) Unless otherwise provided by county charter, appoint for
each county that has an office of county clerk a person who
qualifies under ORS 204.016 to serve as county clerk for the term
specified in ORS 204.010.
  (b) Immediately fill any vacancy in the office of county clerk.
  (c) Upon majority vote of the members of the commission, or
upon request of a county clerk whose conduct is subject to a
hearing under section 3 of this 2013 Act, issue any processes
necessary to compel the attendance of witnesses and the
production of any books, papers, records or documents as may be
required.
  (d) Adopt rules necessary for the performance of its powers and
duties under this section.
  (2) The commission may:
  (a) Subject to the State Personnel Relations Law, appoint such
subordinates and employees as the commission considers necessary
to carry out the duties and powers vested in the commission.
  (b) Request information from any person with respect to the
appointment of a county clerk.
  (c) Censure or remove a county clerk for cause pursuant to the
procedures in section 3 of this 2013 Act.
  (d) Request the assistance of and compensate expert witnesses
and special counsel.
  (e) Take and preserve testimony and administer oaths to
witnesses on any matter within its jurisdiction. + }
  SECTION 3.  { + (1) Upon complaint from any person concerning
the conduct of a county clerk or upon request of a court in the
county in which the county clerk is an officer, and after such
investigation as the Commission on Fitness of County Clerks
considers necessary, the commission may:
  (a) Hold a hearing pursuant to subsection (2) of this section
to inquire into the conduct of the county clerk.
  (b) Request the Supreme Court to appoint three qualified
persons to act as masters, who shall hold a hearing pursuant to
subsection (2) of this section, maintain a record on the matter
referred to them and report to the commission on the conduct of
the county clerk.
  (c) Allow the county clerk to execute a consent to censure or
removal. If a consent is entered into under this paragraph, the
county clerk and the commission must enter into a written
stipulation of facts. The consent and stipulation of facts shall
be submitted by the commission to the Supreme Court.
  (2) When a hearing is held by the commission or by masters as
authorized in subsection (1) of this section, the hearing shall
be public and all the testimony and evidence given and received
in the hearing shall be public records. The county clerk shall
have the right to be present at the hearing, to be represented by
counsel, to present testimony and evidence and to cross-examine
witnesses.
  (3) If, after hearing or after considering the record and
report of the masters, the commission finds that the conduct of
the county clerk justifies censure or removal from office, the
commission shall recommend to the Supreme Court the censure or
removal of the county clerk. + }
  SECTION 4.  { + (1) If a hearing has been held under section 3
of this 2013 Act, the Supreme Court shall review the
recommendation of the Commission on Fitness of County Clerks,
shall review the record of the proceedings on the law and facts
and may receive additional evidence. The Supreme Court may
censure the county clerk or it may order the county clerk removed
from office.
  (2) If the commission has agreed to allow the county clerk to
execute a consent to censure or removal, the Supreme Court shall

review the stipulation of facts and the disciplinary action to
which the county clerk has consented.
  (3)(a) If the Supreme Court approves the consent, the court
shall censure the county clerk or order the county clerk removed
from office pursuant to the terms of the consent.
  (b) If the Supreme Court rejects the consent and stipulation in
full, the court shall remand the matter to the commission for a
hearing under section 3 of this 2013 Act. The hearing shall be
conducted as though the consent and stipulation had never been
entered into, and the stipulations made by the county clerk may
not be considered as evidence by the commission in the hearing.
  (c) If the Supreme Court accepts the stipulation of facts but
rejects the disciplinary action agreed to by the county clerk and
the commission, the court may remand the matter to the commission
for such further fact-finding as the court may direct on the
issue of the appropriate discipline for the conduct, and may
request that the matter be briefed and argued before the court.
The Supreme Court may thereafter censure, or enter an order
removing, the county clerk, as the court finds appropriate under
the law and the facts.
  (4) Upon an order for removal, the county clerk shall be
removed from office and the salary of the county clerk shall
cease and the office of the county clerk is vacant on the date of
the order. + }
  SECTION 5.  { + (1) Documents filed with the Commission on
Fitness of County Clerks and the investigation conducted by the
commission prior to a hearing pursuant to section 3 of this 2013
Act are not public records unless received as competent evidence
in the course of the hearing.
  (2) The decision of the commission after hearing or upon review
of the record and report of masters under section 3 of this 2013
Act is a public record, together with the recommendations, if
any, of the commission to the Supreme Court.
  (3) A consent to censure or removal executed by a county clerk
under section 3 (1)(c) of this 2013 Act, and a stipulation of
facts entered into between the commission and a county clerk
under section 3 (1)(c) of this 2013 Act, are not public records
until the consent and stipulation are submitted to the Supreme
Court.
  (4) Documents filed and testimony given in proceedings under
section 3 of this 2013 Act are privileged communications that may
not be received in evidence in any judicial proceedings other
than those directly connected with the administration of sections
1 to 8 of this 2013 Act unless the privilege is expressly or
impliedly waived by the person filing the document or testifying
in the judicial proceedings or except in a criminal prosecution
for perjury or false swearing before the commission.
  (5) Members of the commission, masters appointed pursuant to
section 3 of this 2013 Act and staff of the commission may not
disclose or use any investigation, testimony or documents that
are not public records as determined under this section for any
purpose other than in connection with their official duties in
the administration of sections 1 to 8 of this 2013 Act.
  (6) Notwithstanding subsection (5) of this section, the
commission may, upon the request of a county clerk who has been
the subject of a complaint and proceedings that are not public
records, state the disposition of the complaint and proceedings
and the reasons for its decision when the commission finds that
the complaint or proceedings have been publicized and fairness
requires comment. + }
  SECTION 6.  { + Any testimony given by a witness compelled to
appear before the Commission on Fitness of County Clerks or the
masters appointed pursuant to section 3 of this 2013 Act may not
be used against the witness in any criminal action or proceeding,
and a criminal action or proceeding may not be brought against
the witness on account of any testimony given by the witness,
except for perjury or false swearing committed before the
commission or the masters. + }
  SECTION 7.  { + (1) Process issued by the Commission on Fitness
of County Clerks shall be served by a person authorized to serve
summons and in the manner prescribed for the service of a summons
upon a defendant in a civil action in a circuit court. The
process shall be returned to the authority issuing the process
within 10 days after delivery to the person for service, with
proof of service as for summons or that the person cannot be
found. When served outside the county in which the process
originated, the process may be returned by mail. The person to
whom the process is delivered shall indorse on the process the
date of delivery.
  (2) Each witness compelled to attend any proceedings under
section 3 of this 2013 Act, other than an officer or employee of
the state, a public corporation, or a political subdivision,
shall receive for attendance the same fees and mileage allowance
allowed by law to a witness in a civil case, payable from funds
appropriated to the commission. + }
  SECTION 8.  { + (1) If a person summoned by the Commission on
Fitness of County Clerks fails to appear to testify or fails to
produce any books, papers, records or documents as required, or
if a person summoned refuses to answer any question pertinent to
the subject under inquiry before the commission, or the masters
appointed pursuant to section 3 of this 2013 Act, the commission
may apply to the circuit court for the county in which the
failure occurred for an order to the person to attend and
testify, or otherwise to comply with the demand or request of the
commission or the masters.
  (2) The application to the court shall be by ex parte motion
upon which the court shall make an order requiring the person
against whom the order is directed to comply with the demand or
request of the commission within three days after service of the
order, or within such further time as the court may grant, or to
justify the failure within that time.
  (3) The order shall be served upon the person to whom it is
directed in the manner required by this state for the service of
process, which service is required to confer jurisdiction upon
the court.
  (4) Failure to obey an order issued by the court under this
section is contempt of court. + }
  SECTION 9. ORS 204.005 is amended to read:
  204.005. (1) The following county officers shall be elected at
the primary election or general election, as provided in ORS
249.088:
  (a) A sheriff.
    { - (b) A county clerk. - }
    { - (c) - }   { + (b) + } A county assessor.
    { - (d) - }   { + (c) + } A county treasurer.
    { - (e) - }   { + (d) + } A county commissioner to succeed
any commissioner whose term of office expires the following
January.
    { - (f) - }   { + (e) + } In any county where there is a
vacancy from any cause in the office of county commissioner, an
additional commissioner to fill the vacancy.
  (2) Unless an adopted county charter or a county ordinance
provides otherwise  { - , - }  { + : + }
   { +  (a) + } The governing body of a county shall appoint a
county surveyor.
   { +  (b) The Commission on Fitness of County Clerks created
under section 1 of this 2013 Act shall appoint a county
clerk. + }
  SECTION 10. ORS 204.020 is amended to read:
  204.020. (1) { + (a) + } The term of office of each officer
elected pursuant to ORS 204.005 commences on the first Monday of
January next following election to office.
   { +  (b) Unless appointed to fill a vacancy, the term of
office of a county clerk commences on the first Monday of January
next following the election provided for in ORS 204.005. + }
  (2) { + (a) + } Before entering upon any elective office listed
in ORS 204.005, the person elected must qualify by filing with
the county clerk of the county in which the person is elected the
person's certificate of election, with an oath of office indorsed
thereon, and subscribed by the elected person, to the effect that
the person will support the Constitution of the United States and
of this state, and faithfully carry out the office being assumed.
The person shall also give and file the undertaking provided for
under subsection (3) of this section.
   { +  (b) Before entering upon the office of county clerk, the
person appointed must qualify by filing with the county clerk of
the county in which the person is appointed an oath of office
indorsed thereon, and subscribed by the appointed person, to the
effect that the person will support the Constitution of the
United States and of this state, and faithfully carry out the
office being assumed. The person shall also give and file the
undertaking provided for under subsection (3) of this
section. + }
  (3) A county governing body may require, by ordinance, for the
filing by each officer under ORS 204.005, prior to that officer
assuming office, of an official undertaking with such surety as
the governing body determines necessary or of an irrevocable
letter of credit issued by an insured institution, as defined in
ORS 706.008, in either case in a reasonable amount with the
county governing body.
  SECTION 11. ORS 204.016 is amended to read:
  204.016. (1) A person is not eligible to serve in any office
  { - listed - }   { + mentioned + } in ORS 204.005 unless the
person is a citizen of the United States and an elector under the
Oregon Constitution.
  (2) A person is not eligible to serve in any elective office
listed in ORS 204.005  { + or as county clerk, + } unless the
person meets the requirements of subsection (1) of this section
and in addition is a resident of the county in which the person
 { - is elected - }   { + will serve + } for the period of one
year preceding the   { - next - }  election { +  or the person's
appointment as county clerk + }, except that in counties of less
than 25,000 population the requirement of residency in the county
in which the person   { - is elected - }   { + will serve + }
does not apply to an elected county surveyor.
  (3) A person is not eligible to be a candidate for election or
appointment to the office of county surveyor unless registered
under the laws of this state as a registered professional land
surveyor.
  (4) A person is not eligible to be a candidate for election or
appointment to the office of county assessor unless:
  (a) The person has qualified as a registered appraiser or is an
appraiser trainee under ORS 308.015 and if an appraiser trainee,
notwithstanding ORS 308.015, becomes a registered appraiser
within two years after taking office; and
  (b) The person either has two years of office and accounting
experience, including experience in office management activities,
or has two years of full-time employment in the office of a
county assessor.
  (5) The Department of Revenue shall prepare applications and
questionnaires, and obtain information it may deem necessary to
determine that a candidate for the office of county assessor has
met the requirements of subsection (4) of this section, and shall
furnish to applicants suitable certificates evidencing
satisfactory compliance with the required qualifications.
  SECTION 12. ORS 204.112 is amended to read:
  204.112. (1) Each county governing body shall appoint a county
compensation board. A county compensation board shall consist of
from three to five members, who are knowledgeable in personnel
and compensation management.
  (2) The county compensation board shall annually recommend a
compensation schedule for the   { - county elective officers
mentioned - }  { + elective county officers listed + } in ORS
204.005 { +  and the county clerk + }.
  (3) The county compensation board shall annually review the
compensation paid to persons comparably employed by the State of
Oregon, local public bodies and private businesses within a labor
market deemed appropriate by the board for each
 { - elective - }  officer  { +  compensated pursuant to
subsection (2) of this section + }. The county compensation board
shall take into account such factors as the number of employees
supervised and the size of the budget administered by each
 { - elective - }  officer, the duties and responsibilities of
each   { - elective - }  officer, and the compensation paid to
subordinates and other appointed employees who serve in positions
of comparable management responsibility. The county compensation
board shall prepare and approve by majority vote a recommended
compensation schedule for the   { - elective - }  officers and
shall submit the recommended compensation schedule to the county
governing body.
  (4) Notwithstanding subsections (1) to (3) of this section, the
sheriff's salary shall be fixed in an amount which is not less
than that for any member of the sheriff's department.
  SECTION 13. ORS 202.110 is amended to read:
  202.110. (1) The county judge and the county commissioners
appointed under ORS 202.100, acting as a county court, shall
appoint a sheriff,   { - a county clerk, - }  a county assessor,
a county treasurer and a county surveyor { +  and the Commission
on Fitness of County Clerks shall appoint a county clerk + }. An
officer appointed under this subsection must be an elector of the
new county and must accept and qualify for the office under ORS
204.016 and 204.020 before beginning service. The officers,
except the county surveyor, appointed under this subsection shall
serve until the first Monday in January   { - after the election
at which their successors are elected - }  { +  next following
the election required under ORS 204.005 + }. The county surveyor
 { + and county clerk + } appointed pursuant to this section
 { - serves - }   { + serve + } for the term specified in ORS
204.010.
  (2) At the next practicable general election following the
appointment, successors to the  { + elective + } county officers
 { - , except the county surveyor, - }  appointed under
subsection (1) of this section shall be elected. The successors
shall take office on the first Monday in January next following
their election.
  (3) All justices and constables in office within the boundaries
of any new county shall continue to hold office in such new
county during the remainder of their term, and shall give bonds
to the new county of the same amount and in the same manner as
previously given to the original county in which they were
elected or appointed.
  (4) At each general election following the general election at
which the first  { + elective + } county officers under this
section are elected, a successor shall be elected to fill any
expiring term.
  SECTION 14. ORS 204.010 is amended to read:
  204.010. (1) Except as provided in subsection (2) of this
section, the term of office of each officer mentioned in ORS
204.005 is four years.
  (2) When two or more county commissioners are elected for one
county at a general election and one of them is elected to fill a
vacancy, as provided in ORS 204.005   { - (1)(f) - }  { +
(1)(e) + }, one of them shall hold office for two years and the
others four years.
  SECTION 15. ORS 204.126 is amended to read:
  204.126. (1) The compensation of any elective county officer
 { +  and the county clerk + } shall remain in effect unless
changed with the approval of the county budget committee or tax
supervising and conservation commission.
  (2) Before any change in the compensation of an elective county
officer  { + or the county clerk + } is effective, it must be
submitted to and approved by the county budget committee or tax
supervising and conservation commission at a regular meeting or
at a special meeting called for that purpose.
  SECTION 16. ORS 249.091 is amended to read:
  249.091. (1) If a nominating petition or declaration of
candidacy is filed by no more than two candidates for the office
of sheriff  { - , - }  { +  or + } county treasurer   { - or
county clerk - }  or by no more than two candidates to fill a
vacancy in a nonpartisan office:
  (a) The candidate or candidates are nominated; and
  (b) The name or names of the candidate or candidates may not be
printed on the ballot at the nominating election.
  (2) If a nominating petition or declaration of candidacy is
filed by more than two candidates for the office of sheriff
 { - , - }  { +  or + } county treasurer   { - or county
clerk - }  or by more than two candidates to fill a vacancy in a
nonpartisan office:
  (a) Unless a candidate receives a majority of the votes cast
for the office, the two candidates who receive the highest number
of votes are nominated.
  (b) If a candidate receives a majority of the votes cast for
the office, that candidate alone is nominated.
  (3) The application of this section is subject to the
provisions of a home rule charter.
  SECTION 17. { +  (1) This 2013 Act does not become effective
unless the amendment to the Oregon Constitution proposed
by House Joint Resolution 32 (2013) is approved by the people at
the regular general election held in November 2014. This 2013 Act
becomes effective on the effective date of that amendment.
  (2) On or after the effective date of this 2013 Act as
specified in subsection (1) of this section, the Commission on
Fitness of County Clerks shall first appoint a county clerk under
section 2 of this 2013 Act in each county that has an office of
county clerk, the appointment to become effective on the earlier
of:
  (a) The day after any vacancy in the office of county clerk
occurs; or
  (b) The date provided in ORS 204.020 (1). + }
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