Legislature should grant AG authority to investigate Kitzhaber-Hayes

by Willamette University College of Law Federalist Society

The Willamette University College of Law Federalist Society, like most Oregonians, is closely following the scandal rapidly enveloping the start of Governor John Kitzhaber’s unprecedented fourth term. News that Cylvia Hayes used her role as Oregon’s First Lady and policy advisor to the Governor for private financial gain is crowding out all other news stories coming out of the 2015 legislative session.

According to the Oregonian, Ellen Rosenblum –– Oregon’s Attorney General –– called the allegations “troubling[,]” saying that her office is “considering all . . . legal options.” While the local media picked up and ran with these statements speculating that the Attorney General may be considering an investigation, nobody has asked the right question: what are the Attorney General’s legal options?

Under Oregon’s Constitutional structure, the Attorney General may not actually possess the authority to mount a criminal investigation into the matter.

Oregon law states that “[t]he Attorney General may, when directed to do so by the Governor, take full charge of any investigation or prosecution of violation of law[.]” Yet, the same section continues, “[t]he power conferred by this section . . . does not deprive the district attorneys of any of their authority[.]”

In Thornton v. Williams (1959), the Oregon Supreme Court examined the issue, defining the scope of the Attorney General’s criminal authority. There the court interpreted the above language to mean that the Attorney General has no power to initiate an investigation of alleged violations of the state’s criminal law nor undertake any criminal prosecutions unless the Governor expressly directs the Attorney General to do so.

The court reasoned that, unlike other statewide elected offices, the Attorney General derives its legal authority from the Oregon Legislature, not from Oregon’s Constitution. When the legislature created the office it intended to preserve the independent authority of the state’s district attorneys thus limiting the Attorney General’s ability to investigate and prosecute criminal activity to certain express fields and those areas of importance to the Governor.

Since then, the legislature has granted the Attorney General the powers and prerogatives of a district attorney only in the fields of organized crime, consumer protection, antitrust, and child support cases.

With this in mind, the Hayes scandal poses a very real problem for the current Attorney General. Even if Ms. Rosenblum feels the allegations and the evidence against the Governor and the First Lady warrant a criminal investigation, she still cannot do so because there is no source of law granting her the authority to investigate the matter. To conduct a criminal probe, the Attorney General would need authorization from the Governor himself. This means that Kitzhaber would need to sign off on the Attorney General’s criminal investigation into himself and his fiancé. It’s unlikely that he would ever authorize this.

There is, however, another way. The Legislature –– currently in session –– possesses the power to grant the Attorney General the sweeping authority she needs to conduct a criminal probe into the Governor’s affairs. Presumably the Marion County or U.S. District Attorneys could mount their own investigations. However, as of yet, neither has expressed any interest in doing so. This is not surprising. A local district attorney does not possess the resources, expertise, or political capital required for this kind of an inquiry. Likewise, Oregon does not need an unelected federal prosecutor prying into Oregon’s state affairs.

It is in Oregon’s interest to police its own. In this instance, the Oregon legislature should compel the state’s Attorney General to mount an investigation into Kitzhaber’s affairs. The Attorney General is uniquely situated to bring an investigation of this type. As the independently elected executive officer in charge of the largest law firm in the state, the Attorney General possesses the political capital, resources, and expertise to root out corruption in Oregon’s capital.

Granting the Attorney General the authority to investigate and prosecute political corruption in the other executive departments would increase the number of checks and balances in our state’s political system. If the Attorney General had the power to investigate shady dealings, government would be more transparent and accountable to the people.

There may be a reason why Oregon ranks so low on all the surveys of local government corruption: nobody has the authority to look for any.

The views and opinions expressed in this article are solely those of the Willamette University College of Law Federalist Society. These views and opinions do not necessarily represent Willamette University, its faculty, or its student body.