passed ordinance

*Authorize settlement and payment of attorney’s fees and costs in Michael Kessler v. Ted Wheeler, Mayor of City of Portland, and City of Portland for amount not to exceed $166,893 (Multnomah County Circuit Court Case 22CV41219)

public safety
budget finance
claim settlement

Department: City Attorney
Introduced by: Former Mayor Ted Wheeler
Status: Passed

Impact statement

Purpose & background

This ordinance approves the settlement negotiated between the parties and caps attorney’s fees demanded as a result of the lawsuit for declaratory and other relief brought in Kessler v. Wheeler and City of Portland , Case No. 22CV41219, and related to a request for public records involving text messages sent or received by the Mayor and retained by the City.

Financial impacts

This legislation will have no impact on City revenue. Total cost to the City to settle this matter will not exceed $166,893.00. The source of the funding will be the Legal Priorities Reserve Fund.

Community impacts

This settlement is in furtherance of the City's goals of transparency and accessibility of public records, and compliance with public records requests. This Ordinance resolves a lawsuit involving the Office of the City Attorney. No community involvement or input was sought regarding this ordinance. The Office of the City Attorney has concluded that it is not appropriate to have community involvement in settlement negotiations regarding lawsuits against the City.

▸ Full text (the legislation as adopted)

The City of Portland ordains: Section 1. The Council finds: In July of 2020, Michael Kessler ("Kessler") submitted a public records request for text messages to and from the Mayor. Kessler proceeded to make an additional 24 substantially similar requests over the next 28 months. The City provided responsive records, archived in the City's text message retention system, Smarsh, and text messages archived during the Enterprise Mobility Management (EMM) enrollment process. On December 3, 2022, Kessler filed a lawsuit alleging, among other things, that the City unduly delayed a complete response to his requests. It is in the City's best interest to resolve the lawsuit prior to trial. Resolution of the lawsuit prior to trial constitutes a compromise of disputed claims and is not an admission of liability. The parties agreed, subject to Council approval, to resolve the lawsuit on the following terms: The City shall reimburse Kessler for the fees paid to the City for the requested records, his costs in initiating a lawsuit against the City, and an additional sum of $5,000.00, for a total amount of $6,893.00. The City shall pay Kessler reasonable attorney fees as ordered by the court, in an amount not to exceed $160,000.00. The City Attorney’s Office recommends the payment of $166,893.00 as a compromise from the full demand to resolve the matter without further legal proceedings. NOW, THEREFORE, the Council directs: The City Attorney’s Office is hereby authorized to enter into and execute a settlement agreement, in a form substantially similar to Exhibit A attached hereto, as well as payment of the monies and implementation of other terms referenced therein. The Mayor and the Auditor are hereby authorized to draw and deliver a check in the amount of $6,893.00, plus the court-ordered attorney fees, for a total amount not to exceed $166,893.00, made payable to Alan Kessler. Council authorizes payment of these amounts from the Legal Priorities Reserve Fund. Section 2. The Council declares that an emergency exists in order to avoid undue and costly delay in settling this matter; therefore, this Ordinance shall be in full force and effect from and after its passage by the Council.

Tally

5 yea 0 nay