Watchdog Forces Portland to Enforce Lead Laws — City Complies, yet seeks $2,705 in Attorney's Fees

Watchdog Forces Portland to Enforce Lead Laws — City Complies, yet seeks $2,705 in Attorney's Fees

My client Sean Green is a human of the highest caliber. He runs a small ethical business, he chairs the Board of Directors for the Northeast Coalition of Neighborhoods, he volunteers for the City of Portland's Development Review Advisory Committee (DRAC), and is continually seeking to better himself and humbly serve his community.

In his role on DRAC, Sean became aware that the Bureau of Development Services was failing to take action on an important environmental protection law meant to keep lead out of our neighborhoods and out of our bodies. He noticed that the City had not kept its schedule for implementation and analysis of a set of regulatory rules adopted by Portland City Council in 2018 designed to require developers from pulverizing lead paint when demolishing old houses for new construction.

Sean and some of his colleagues observed that the design of the enforcment system for the lead law was structurally incapable of catching violators. Moreover, the City had not been performing the study of the efficacy of the ordinance required by City Council. When the Bureau of Development Services missed a January 1, 2020 deadline to bring its data back to Council, Sean filed suit against the City.

Sean's suit asked the City to simply comply with its obligations to bring the matter of the lead ordinance in front of Council. He asked for no damages, no attorneys' fees, and didn't even ask to be reimbursed his filing fee. This was a pure public service. Likewise, I took the case pro bono with my only goal being to protect our enviornment and public health.

Mayor Wheeler's Bureau of Development Services took an extremely hard-nosed approach to our lawsuit, immediately threatening Sean with a motion for attorney's fees if he did not drop the case immediately.

From: Garcia,Tony<Tony.Garcia@portlandoregon.gov> Subject: RE:SeanGreen'sPetitionforAlt.WritofMandamusRE:BDS Date: January8,2020at9:19AM To: AlanKessler<ak@alankesslerlaw.com> OEC 408 Communica/on Alan- BDS is ready to report to Council. The delay is because at the end of 2019 your client asked for substan/ve changes in the administra/ve rules. BDS is in the process of draHing those changes. The rules need to be veIed and circulated for approval to various stakeholders before they are ready to be presented to Council. BDS’ inten/on is bring it all together in one package before City Council (which is their preference) with a target date of March. I see two op/ons: 1. BDS con/nues on the current path and brings the report and any code/administra/ve rules changes before City Council some/me in March; or 2. BDSseparatestheprocessandprovidesthereporttoCouncilnowandcomesbackatalaterdate(which might move the /meline into April) with the code/administra/ve rule changes. If you allow the City’s process to move forward with a stay of the Writ and dismiss the Writ once the report is heard, we will not seek fees. Under the second scenario, your Writ becomes moot (see Buckhannon v. West Virginia 532 US 598) and the City will seeks its’ fees. Please let me know which op/on your client would prefer. Tony

The report was due by January 1, 2020.

Even so, the City Attorney gave us an ultimatum. Either we simply go away and let the City proceed on its own indefinite schedule ("sometime in March"), or we continue to press for the City to follow the law and bring the report right away, in which case the City threatened that it would delay the updated adminiatrative rules ("more months of uncontrolled lead dust in our neighborhoods" ) and demand legal fees from my client.

From my client's perspective, the City threatened to continue to allow lead dust to poison playgrounds and neighborhoods rather than simply comply with their obligations in a timely manner.

We didn't flinch, and the City moved faster than its best case scenario, bringing the report to council. In fact, Sean's lawsuit seems to have accelerated the City's process. By mid-Feburary the City had scheduled a hearing and was moving forward.

At that time, I spoke with the City's attorney about ending the case. The action we filed, called an Alternative Writ of Mandamus, ordered the City to either certify that they were following the rules or show why they're not required to. By the time the City's response was due, it had already responded.

However, as with my 4-year-old kid, it was vital to the City that compliance was their own choice, not something we "made" it do. The City's counsel said as much to me on a phone call (documented in the email below).

From: AlanKessler<ak@alankesslerlaw.com> Subject: Re:Greenv.City-Confer Date: February18,2020at10:43AM To: TonyGarcia<Tony.Garcia@portlandoregon.gov> Tony, Thanks for chatting with me this morning. I don't understand why the City would file the motion to dismiss at this point instead of just certifying compliance with the writ. As I clarified to you on the call, the writ was drafted so that all your client needs to do to by today is schedule the hearing and certify that monitoring is happening. It sounds like your client has complied and could most cost- effectively resolve this by filing your certificate. As I mentioned on the call, if the City will agree to file a certificate of compliance instead of a motion, we will agree that the certificate resolves the action and we will not seek any costs or fees. You indicated on the phone that your client will not agree to this, because it doesn't want it to appear as though it complied because of our petition. I would note that filing the certificate would not likely create any useful precedent or res judicata that would be applicable in other suits. If we litigate a motion to dismiss, your client may end up creating the precedent it seeks to avoid. I would encourage you and your client to reconsider. In any case, thank you for the opportunity to confer; I look forward to reviewing your filing. If you choose to serve by mail, as a courtesy, would you please provide an email copy of whatever you file today? Best regards, Alan
The City "doesn't want it to appear as though it complied because of our petition," so it dragged out litigation.

Rather than simply file its certificate of compliance the City drafted a Motion to Dismiss making four arguments, three of which were ignored by the court. The fourth was that because the City already complied it was not required to comply (i.e. the case was moot).

The Court accepted the mootness argument, and rejected our policy argument for hearing the case anyway (a matter of discretion for the judge). Judge Steffan, therefore ordered dismissal of the case "without prejudice" for mootness.

Now, incredibly, the City is taking the position that because it did exactly what we sued to force it to do (far earlier than it said it would in the absence of our litigation) but before the court actually forced it to do so, it is the "prevailing party" in the lawsuit and Sean should be forced to pay it $2,705.80.

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About Alan Lloyd Kessler

Attorney in Portland, Oregon focused on public records and civil litigation. Passionate about government transparency, abundant housing, and active transportation.

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