McPherson et al v. City and Water Board Coos County Circuit Court Case No. 19CV43695, Aug. 13

City of North Bend release of Attorney’s letter – Circuit Court Judge Andrew Combs issued his letter opinion in the case of McPherson et al. vs. Coos Bay-North Bend Water Board et al. on July 31, 2020. That letter is posted on the City’s website, and it is attached to this memo. Judge Combs dismissed all claims filed against the City of North Bend by Douglas Bankler, Debra Bankler and Lois McPherson. The crux of the opinion is that the City of North Bend has the authority under its City Charter to create the Public Safety Fee and have the Water Board collect it from rate payers on North Bend’s behalf. A brief review of the history of this litigation will remind you of how the case arrived at this juncture. The original complaint was filed on October 7, 2019 by Douglas Bankler, Debra Bankler and Lois McPherson and their attorneys from the Oregon Legal Center. The complaint sought certification as a class action on behalf of all current and former residents paying the fee and who were low income as defined by the federal government. The City opposed the class action certification and Circuit Court Judge Megan Jaquot issued an opinion and order on April 22, 2020 denying class certification. That decision was followed by McPherson and the Banklers filing an Amended Complaint on May 5, 2020 in which they sought: • A declaration that the imposition and collection of the Public Safety Fee was illegal. • A requirement that the City and the Water Board provide an accounting of all money paid for the Public Safety Fee from April 1, 2017 to the present. • An appointment of an independent auditor at the expense of the City and the Water Board to examine all expenditures from the Public Safety Fee funds. • A requirement that the City and the Water Board that all monies that were spent in violation of the North Bend City Charter be paid into a constructive trust. • To require the City and Water Board to refund all amounts charged in violation of the North Bend City Charter in the amount of $192,500.00. • An award to the Banklers and McPherson of their reasonable attorney’s fees, costs and disbursements. After the Amended Complaint was filed and answered by the City, both sides filed Motions for Summary Judgment. These are motions which are based on a finding that there were no factual issues left to be determined, and a finding that the only issues left to be determined were legal issues to be decided by Judge Combs. The judge heard argument on the Summary Judgment motions on July 15, 2020 and issued the decision you now have before you on July 31, 2020. Judge Combs reached the same conclusions you reached a few years ago when you decided enact a Public Safety Fee: 1. North Bend is a “home rule” city, which gives it broad authority to enact municipal legislation and North Bend had the power under its City Charter to create a Public Safety Fee. 2. Court also found that North Bend had the power and authority under its City Charter to authorize the Water Board to collect the Public Safety Fee. Those basic conclusions take care of all the claims raised by the Banklers and McPherson that the City acted illegally in its enactment of the Public Safety Fee.