A former Benton County deputy has filed a legal action claiming Sheriff Scott Jackson has moved to Waldport and should be stripped of his office because he is no longer a resident of the county he serves.
The sheriff is disputing that claim, and other county officials are backing him up.
Eric Konzelman filed a petition for a writ of review in Benton County Circuit Court on May 20, the same day he was fired from his job following an internal investigation into an arrest that his superiors deemed improper. (Konzelman contends the arrest was proper and has filed a union grievance appealing his dismissal.)
The petition is essentially an appeal of a May 3 ruling by County Clerk James Morales that Jackson meets the residency requirement in the Benton County Charter for the office of sheriff, which Morales issued in response to an April inquiry by Konzelman.
Konzelman’s petition claims Morales’ determination is in error and asks the court to require the county clerk to turn over evidence of residency submitted by Jackson for review by the court. In addition, the petition asks the court to declare that Jackson is not a resident of Benton County, that the office of sheriff is thereby vacant, and that the position must be filled by a special election.
The crux of the issue comes down to where Jackson has his primary residence.
When he last filed for re-election in September 2017, Jackson listed a Philomath address as his place of residence. But less than two weeks later, property records show, the sheriff took out a $413,000 VA-backed mortgage loan for a house in Waldport, an hour’s drive away in neighboring Lincoln County.
According to Konzelman’s attorney, Dan Thenell, that has become Jackson’s primary residence. Thenell said he’s been told by a number of Benton County deputies that they’ve observed the sheriff driving to and from the coast on a daily basis — observations he said were confirmed by investigators hired to follow Jackson.
"It's a known fact in the Sheriff's Office that the sheriff lives in Waldport," Thenell said.
Thenell also points to a clause in the mortgage document for the Waldport house that states: “Borrower shall occupy, establish, and use the property as borrower’s principal residence” for at least one year unless the lender agrees otherwise in writing.
“I’ve got a sworn document that says he lives in Lincoln County, I’ve got physical observations of him living in Lincoln County, and it’s a running joke in the Sheriff’s Office that he lives in Lincoln County,” Thenell said.
Home away from home
Jackson says there's a simple explanation for all those trips back and forth to Waldport: He's been fixing up his second home.
According to Jackson, he and his wife purchased the 1,600-square-foot tri-level house as a place to retire when his tenure as sheriff is done.
But late last year the home’s finished basement flooded, causing extensive damage, and Jackson said he's been making frequent trips to Waldport to do renovation work.
"I've spent more time there than here the last eight months or so," the sheriff acknowledged.
"It wasn't my intent to stay there as much as I have,” he added. “It was just the flood damage."
Jackson said he finished the project several weeks ago and has settled back into his former routine.
"For the last month, I've been back in Philomath weekdays," he said. "Weekends I like to go over to the coast."
However, he insists, he has never stopped calling Benton County home.
"This is my primary residence," he said, "here in Philomath."
As for the mortgage clause, Jackson said he considers it a promise not to turn the place into a rental rather than a pledge to make the Waldport house his permanent home.
"If you look on all the papers for the mortgage, Philomath is listed as my primary residence," he said. "I specifically asked (the mortgage lender) about it, and she said it's fine as long as I don't rent it out or Airbnb it."
County stands by sheriff
Under the Benton County Charter, one of the requirements to be sheriff is to be a registered voter of the county, which in effect means the officeholder must be a county resident.
But determining residency turns out to be trickier than you might think.
Chapter 247.035 of the Oregon Revised Statutes defines it this way: "A person's residence shall be the place in which habitation is fixed and to which the person intends to return."
That seems plain enough — until you start looking at the specific criteria used to determine a person’s place of residence.
You have free articles remaining.
Under the statute, those criteria include, but are not limited to, the following:
• Where the person receives personal mail.
• Where the person is licensed to drive.
• Where the person registers vehicles for personal use.
• Where any immediate family members of the person reside.
• The address from which the person pays for utility services.
• The address from which the person files any federal or state income tax returns.
Konzelman initially took his residency complaint to James Morales, the Benton County clerk, on April 11. Morales, in turn, asked Jackson to supply proof of residency and sign an affidavit attesting that the Philomath address is his primary residence.
According to Morales, Jackson provided all the necessary proof that he fulfilled those requirements.
"Everything is met according to the statue," Morales said. "I thought it was pretty cut and dried."
Benton County Counsel Vance Croney said he thinks Morales made the right call, despite all the nights and weekends Jackson has been spending in Waldport.
"There is more evidence that Scott (Jackson) is a resident of Benton County than that he resides in Lincoln County," Croney said.
"Just because somebody buys a fixer-upper in another county that requires many weekends of work, that doesn't transform that into your primary residence," he added. "It just means you're spending a lot of time at that location."
On June 18, Croney filed a response to Konzelman’s petition for a writ of review in Benton County Circuit Court, challenging the validity of the filing on procedural grounds. Croney asserts that the court lacks proper jurisdiction, that Konzelman has failed to adequately articulate a claim for relief and that legal papers were not properly served in the case.
For those reasons, Croney’s motion asks the court to dismiss the case. A hearing has not yet been scheduled to resolve the matter, and a judge has not yet been assigned to the case.
Sticking to their guns
Thenell says he’s skeptical of Jackson’s explanation that his frequent stays in Waldport arose from last winter’s flood damage.
“I’m not surprised that he would have a story to explain why he’s living in Lincoln County, nor am I surprised that the county counsel would accept it,” he said. “The observations I have go much further back than eight months.”
He also dismisses the idea that the occupancy clause in the mortgage is simply a prohibition against turning the Waldport house into a rental.
“That clause speaks for itself,” he said. “And the last time I checked, a loan officer is not qualified to give legal advice.”
And he’s dubious about the Morales’ investigation into Jackson’s residency status, which he suspects went no further than simply taking the sheriff’s statements at face value.
“We do not know what the county looked at in reaching its decision,” Thenell said. “I don’t get the impression from my conversations with the county that they did a whole lot of digging.”
Ultimately, he said, the matter will be settled in court.
"We want the truth to come out, and my client believes the citizens of Benton County deserve better," Thenell said.
Jackson said he, too, wants the truth to come out – and the truth, he insists, is that he’s a Benton County resident who lives in Philomath.
"I want to be transparent with the community I serve," the sheriff said.
"I have spent a lot of evenings out at the coast, but this is my home."