Burkholder Cleared of Elections Violation

Metro Councilor Rex Burkholder won't have to pay a fine for a false statement in his 2010 Voters' Pamphlet statement.

That's because Burkholder prevailed recently in his arguments before an administrative law judge that the statement appeared without his knowledge.

The issue arose during the 2010 primary election for the Metro council president's position. During that race, in which Burkholder ultimately finished third behind Tom Hughes and Bob Stacey, WW reported that Burkholder claimed in his Voters' Pamphlet statement to have co-founded Portland's Cloudburst Recycling.

Burkholder acknowledged that claim was false. On Nov. 29, 2010, the Oregon Secretary of State's Elections Division issued a notice of civil penalty to Burkholder and fined him $2,500 for violating election law.

Burkholder disagreed with the finding and requested a hearing, which was held on Feb. 7.

Here, from the 13-page document last week summarizing the case, is the heart of the matter:

"The case turns on what the term 'knowingly' in [statute] means," wrote senior administrative law judge Ken Betterton in his March 21 opinion. "Burkholder argues that he did not know when he signed the two candidate statements that false information that he co-founded Cloudburst Recycling appeared on the next page. He did not read the page or read it carefully enough to catch the error. Burkholder argues that to violate [the statute] he had to have actual knowledge at the time he signed the statements that the information was false." 

At the hearing, Burkholder and two campaign staffers testified that his statement was the result of numerous iterations in the days before its deadline for publication in the Voters' Pamphlet.

"Burkholder credibly testified that he did not know the statements incorrectly state his involvement with Cloudburst," Betterton found. "The difference between what was true and not true about his involvement with the company was the placement of a couple of words and a semicolon. His candidate statements had undergone numerous drafts. It is understandable that Burkholder did not catch the change when he signed the candidate statements."

The judge also credited Burkholder with immediately trying to rectify the error by apologizing to Cloudburst's founders, correcting his website and subsequent statements for the League of Women Voters election guide.

"Burkholder did not knowingly make a false statement on his candidate's statement," Betterton found. "No civil penalty should be imposed."