CHARLES CARREON (OSB: 93469)

Online Media Law, PLLC

423 Gateway Drive

Pacifica, California 94044

Tel: 650/735-5277

 

Attorney for Plaintiff American Buddha

 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

 

AMERICAN BUDDHA, an Oregon Nonprofit Corporation,

Plaintiff,

vs.

THE CITY OF ASHLAND AND THE WASHINGTON POST COMPANY,

Defendants.

 

Case No.: 1:06-cv-3054

 

SUPPLEMENTAL AFFIDAVIT OF CHARLES CARREON IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; EXHIBITS

 

AFFIDAVIT OF CHARLES CARREON

 

Charles Carreon declares:

 

1. I am an attorney licensed to practice law before the courts of the States of Oregon and California, and a member of the Bar of this Court. I make the following statements on personal knowledge, and if called as a witness, I could and would so competently testify.

 

2. This affidavit is made in support of plaintiff’s request for leave to supplement its opposition to the City of Ashland’s Motion for Summary Judgment with relevant facts not known to plaintiff when it filed its Opposition to the Motion for Summary Judgment.

 

3. In particular, the conduct of Ashland’s former City Attorney, Mike Franell, has come under scrutiny, because he was the City’s top legal officer in charge of the City’s policies concerning the operation of Ashland Fiber Net (“AFN”), and also related by blood to Joe Franell, the City’s Information Technology Director, who is his brother. At deposition, Mike Franell testified helpfully to plaintiff on several issues:

 

a. He did receive a copy of Kathleen Parker’s email to Rick Holbo (“Parker’s email”), a matter concerning which Holbo had failure of recollection. (Parker’s email, referred to as Exhibit 2 in his deposition testimony, is attached as Exhibit 8 to the affidavit of Charles Carreon previously submitted in opposition to the City’s pending motion.) (Mike Franell Depo., 5:7-23.)

 

b. He did have telephone conversations or email exchanges with Holbo concerning Parker’s email. (Mike Franell Depo., 5:7-23.)

 

c. He approved Holbo’s actions by ratification. (Mike Franell Depo., 5:7-23.)

 

4. Exhibits 12 and 13 are self-authenticating under Federal Rule of Evidence 902(5), and thereby qualify as admissions admissible against the City, officially published by the City at <http://www.ashland.or.us/News.asp?NewsID=1510> that on February 1, 2007, Mayor Mike Morrison accepted the resignation of City Attorney Mike Franell, who was “looking forward to spending more time with [his] wife and eight children and [his] work as pastor at the Lozier Lane Baptist Church in Medford.”

 

5. Exhibits 14, 15 and 16 attached hereto, are self-authenticated pursuant to FRE 902(6), as newspapers and periodicals, and contain information relevant to the matters at issue in this litigation. The resignation of Mike Franell appeared was reported by the local Ashland Daily Tidings on February 6, 2007, that reported that Mike Franell had headed off having to appear at an executive session of the Ashland City Council to review his performance that would have, among other things, examined his handling of City litigation. (Exhibit 15.) On the same day, an article appeared in the Ashland Daily Tidings concerning this lawsuit. Mike Franell was interviewed and answered questions from reporter Vickie Aldous regarding this lawsuit. The close coincidence of these events makes it reasonably inferrable that Mike Franell’s sudden departure from City service to attend to his religious duties was sparked at least in part by his failure to provide proper oversight of Holbo and his brother Joe during the matters giving rise to this litigation. Since all inferences are due the non-moving party on this motion, and what is generally known in the community should not be off-limits to this Court in deciding the pending motion, this evidence is respectfully submitted.

 

6. These newspaper reports were unknown to me until after I had filed the plaintiff’s initial opposition to the City’s motion for summary judgment.

 

7. This supplemental affidavit is not submitted for any improper purpose, but only to amplify the record with matters that are relevant to the matter before the Court; accordingly, I respectfully request the Court to take account of them, and to consider them in forming any inferences concerning the motion before the Court.

 

I hereby declare, pursuant to the provisions of 28 U.S.C. § 1746 (2), under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed at Pacifica, California, on March 9, 2007.

 

/s/Charles Carreon

CHARLES CARREON, Declarant

 

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Exhibit 12:  2/1/07:  Mayor accepts resignation from City Attorney Mike Franell

 

 

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Exhibit 13: Mayor Accepts Resignation from City Attorney Mike Franell

 

 

Mayor John Morrison has accepted a letter of resignation from Mike Franell. “We will miss Mike’s legal expertise. He was a diligent steward of the City of Ashland’s legal interests and was cautious and thorough in his work,” said Morrison.

Franell began working with the City of Ashland in October of 2003. He will continue to serve as City Attorney until early May and help facilitate the workload transition to the new City Attorney.

“I’ve enjoyed my work with the City of Ashland, and after giving a great deal of thought I have decided to pursue other opportunities,” said Franell. “The workload demands on my personal time continue to grow and time with my family is my first commitment. I am looking forward to spending more time with my wife and eight children and my work as pastor at the Lozier Lane Baptist Church in Medford”.

“I wish Mike the best in all his endeavors and thank him for his service with the City,” said Morrison.

The City will begin a search for a new City Attorney in the next few weeks.

 

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Exhibit 14:  Franell resigned before job review

 

 

Rather than attend a meeting about his performance review with the Ashland City Council, City Attorney Mike Franell tendered his resignation instead.  Read more ...

 

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Exhibit 15:  Franell resigned before job review

 

 

Franell resigned before job review
By Robert Plain
Ashland Daily Tidings
February 6, 2006

Mike Franell

Photo by Orville Hector | Daily Tidings

City Attorney Mike Franell's resignation came on the day the Ashland City Council was scheduled to hold a meeting about his job performance.

"There was no reason to have the evaluation because Mike had already resigned," said City Administrator Martha Bennett.

The council planned an executive session — a closed-door meeting to discuss employees, real estate or litigation held behind closed doors — to evaluate his performance on Wednesday night. The meeting was cancelled when Franell announced he was leaving his job.

City officials would not talk about Franell's evaluation process, or the reasons for his resignation, citing personnel issues. A new contract he signed with the city since he decided to resign prevents those familiar with the situation from discussing it.

"We have a new agreement with Mike but the terms are confidential," Bennett said.

Franell said he decided to leave his post as Ashland's legal counsel to spend more time with his family and his church, where he is a pastor.

"The community has become a little more aggressive and little more litigious," he said. "It became difficult managing all three aspects of my life."

He acknowledged making "mistakes in the past" and attributed those errors to the work load of the job.

"The demands of the job are getting to the point that I had to make a decision one way or another," he said, about choosing between his family, his church and his job.

He knew there would be speculation of his resignation being forced.

"Of course there is going to be a lot of political talk out there," he said on Friday. "I have my supporters and my detractors in the community. The struggles the city has in the political realm definitely adds to the work load, but I don't think that pushed me out."

He said there has been one city councilor critical of his performance during previous reviews.

"I assume that would have continued," he said, while choosing not to identify the councilor.

Two Ashland political activists, Art Bullock and Ralph Temple, submitted negative reports to the city council to coincide with Franell's review.

Bullock complained that Franell was not responsive to community concerns, writing, "Ashland needs a city attorney who operates in the public interest, with a strong orientation to Ashland's community character."

Temple complained that Franell withheld information from the public about the watch list, a list of names and photos of people Ashland police identified as local trouble makers. District attorney Mark Huddleston agreed and forced the city to turn over additional documents about the watch list.

Franell said he enjoyed being the city attorney for Ashland, calling it "tremendously intellectually challenging job."

He was the city manager and city attorney in Ontario, Ore., before coming to Ashland in 2003. He would consider becoming a government attorney if a position came up in another Jackson County community, and is also considering going into private practice locally.

"I'm very seriously considering hanging up my own shingle," he said. "I might open up my own practice."

If he does go into private practice, he said he would like to focus on land-use law. Franell also served as the planning director in Ontario before becoming the city attorney. He didn't handle Ashland's land-use law because it is very time consuming and it tends to put a municipal attorney at odds with the most powerful people in a community.

"When you do land use for a city you tend to anger the people with the most money," he said. "Generally the people with the most money have the most influence over government. In private practice, I'd play a much different role. In private practice I wouldn't be seen as the one enforcing or making the decisions. I would evenly apply the land-use law for my clients."

Staff writer Robert Plain can be reached at 482-3456 x. 226 or bplain@dailytidings.com

© 2007 DailyTidings.com
Page: http://www.dailytidings.com/2007/0206/stories/0205_franell.php

 

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Exhibit 16:  City in court fight over pornographic image

 

 

"People rarely say, 'I did this litigation to give back to the community.' But I did," he said. "AFN is supposed to be operated as a public forum. This is a community where people have repeatedly expressed the desire for free speech."

The case began Aug. 1 when AFN got an e-mail from Parker, a conservative columnist with the Washington Post Writers Group whose column appears in more than 350 newspapers across the country.

"Many of my fans are children, some of whom are my own, who Google me frequently. I am also a frequent subject for school research projects and student papers. They do not need to see such a thing. I am asking for your help in getting this image off the Web as soon as possible."

Parker said she did not want to comment for this article.

After receiving the e-mail, City Attorney Mike Franell told an AFN engineer to consult with InfoStructure, the private business that provides the Carreons with AFN Internet service.

Franell said an InfoStructure representative instructed AFN to shut off the site. Within minutes, Carreon called the city and was informed of the copyright claim, but he quickly got InfoStructure to turn the site back on.

The site was down for about an hour, Franell and Carreon agreed.

Carreon said shutting down his Web site did not remove the picture of Parker from the Internet and only succeeded in restricting his free-speech rights. The image of Parker and others on the Carreons' site with similar themes using the likenesses and names of other conservative national leaders are still easily obtained through a Web search, he noted. A Web search conducted Tuesday at the Mail Tribune showed the image of Parker remains on the Carreons' Web site.

Shortly after the incident, Carreon filed his lawsuit in U.S. District Court in Medford.

He said the city of Ashland runs AFN as a public forum and was not complying with First Amendment protections when it shut down the Web site.

Carreon may not have First Amendment protections because InfoStructure gave the instructions to have his Web site shut down, said Dennis Dunleavy, an assistant professor of journalism at Southern Oregon University who studies copyright infringement and Internet issues. The First Amendment deals with government restrictions on free speech. A private company can shut down an Internet site, he said.

However, Dunleavy said Carreon has won other precedent-setting Internet-related cases.

In 2003, Carreon recovered the rights to the Web site address www.sex.com for the man who first registered the name. That address is the most valuable domain name in the world, according to the online industry publication Domain Name Journal. Carreon said his client sold the domain name for $15 million in 2006.

Law schools teach about the sex.com lawsuit, he said. The city of Ashland should have been more cautious about shutting down Carreon's Web site, Dunleavy said.

"The act was not well thought out beforehand. They didn't know the extent of the consequences of their actions before they did it," Dunleavy said. "They picked on the wrong guy."

But Franell said the city of Ashland did not violate Carreon's free speech rights because AFN is a wholesaler of Internet services and was acting on the instructions of InfoStructure.

"I don't believe it was a government action," Franell said.

Since Carreon filed his lawsuit, the city has adopted a formal policy to govern how it handles copyright infringement claims, Franell said.

Staff writer Vickie Aldous can be reached at 479-8199 or vlaldous@yahoo.com.