Legislative lawyer says Salem mayor serving in state House might violate Oregon’s Constitution

The Legislature’s top lawyer is warning that a Salem Democrat may be violating the Oregon Constitution by serving as mayor of Salem and a state representative at the same time. 

Chris Hoy, then a Salem city councilor, was appointed to the state House last December after former Rep. Brian Clem, D-Salem, stepped down. He planned to finish Clem’s term and did not seek election to the House.

Instead, Hoy ran for mayor of Salem and won outright in the May primary election, avoiding a runoff. Last week, outgoing Mayor Chuck Bennett resigned ahead of a move out-of-state and the remainder of the Salem City Council appointed Hoy to begin his term two months earlier than anticipated. 

That raised eyebrows in Salem. On Monday, the Capital Chronicle obtained a legislative counsel opinion saying there was a “significant risk” Hoy’s appointment violates the Oregon Constitution. 

Article II, Section 10 of the state Constitution prohibits anyone holding a “lucrative office” or an appointed state or federal job from serving in the Legislature. Hoy reasons that serving on the Salem City Council or as mayor doesn’t count as a lucrative office, as Oregon’s second-largest city doesn’t pay its city councilors or mayor.

“If that weren’t the case, then it’s very clear that that would not be acceptable,” Hoy said. “But as I understand the law, and nobody has shown me otherwise, it’s perfectly lawful and I intend to serve out the last few weeks of my term.”

He said he believed either legislative counsel or the Oregon Justice Department reviewed whether he could continue serving on the City Council when he was appointed last year. Several members of the Legislature, including Senate Majority Leader Rob Wagner, D-Beaverton and Rep. Mark Owens, R-Crane, have served on unpaid school boards during their tenures in the Legislature. 

But in the opinion submitted to the House Clerk’s Office late last week that was reviewed by the Capital Chronicle on Monday, the legislative counsel cited a 1943 Oregon Attorney General ruling on whether a circuit court judge could serve on a panel of the National War Labor Board. The judge volunteered to waive compensation – but the attorney general at the time ruled that holding both positions would still violate the constitutional prohibition. 

That 1943 opinion described the purpose of the constitutional ban as preventing one person from holding “incompatible” offices, or situations where performing duties for one office would conflict with the other, legislative counsel Dexter Johnson wrote. 

“While the facts are slightly different here than in those considered in the attorney general opinion, I believe the rationale of that opinion would also likely warrant a conclusion that a volunteer mayor could not serve as a legislator in compliance with Article II, section 10, because the concept of ‘incompatibility’ would still be present,” Johnson wrote.

Hoy told the Capital Chronicle that he would resign from the Legislature before his term ends in January if it were clear that he couldn’t legally serve in both roles. Should he resign, Marion County Democrats would select three to five finalists for an appointment and the county commission would make the final appointment. Hoy was appointed following the same process last fall. 

Another representative from Marion County, Republican Bill Post of Keizer, resigned last fall following an initial lack of legal clarity over whether he could continue to serve in the Oregon Legislature after moving to Nevada.  

The House this fall already swore in one representative, Sandy nonprofit consultant Lori Kuechler, who will likely never cast a vote from the House floor. Kuechler is finishing the last three months of the term of former Rep. Anna Williams, a Hood River Democrat who resigned in August to take a state policy job. 

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: [email protected]. Follow Oregon Capital Chronicle on Facebook and Twitter.

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Julia Shumway is deputy editor of Oregon Capital Chronicle and has reported on government and politics in Iowa and Nebraska, spent time at the Bend Bulletin and most recently was a legislative reporter for the Arizona Capitol Times in Phoenix. An award-winning journalist, Julia most recently reported on the tangled efforts to audit the presidential results in Arizona.