Gov. Kate Brown’s first major mistake

Dan Lucas_July 2012_BW

by Dan Lucas

There are about 40,000 state workers in Oregon. Around 800 of those state employees work for the Department of Administrative Services (DAS). Some of those DAS employees demonstrated extraordinary courage and principles earlier this year during the closing weeks of Gov. Kitzhaber’s administration.

Rather than being praised or encouraged, though, they continue to be the subjects of breathtaking retribution. Retribution that began just hours into Gov. Kate Brown’s administration and retribution that is ongoing. Retribution that communicates very loudly and clearly to state workers that if they are tempted to be whistleblowers or to question orders that may be illegal, they will face extreme retribution, including criminal prosecution.

That doesn’t really seem to be in line with Brown’s stated goals of restoring confidence in state government and creating a more transparent administration.

Back in February Willamette Week reported that Kitzhaber’s office asked for thousands of emails to be deleted one day before a criminal investigation opened into Kitzhaber and former first lady Cylvia Hayes and that “Oregon law makes it a crime to improperly destroy or tamper with public records or evidence.”

DAS data center workers were concerned that “potential evidence would be destroyed” and they refused to destroy the emails.

Some of the controversy centers around whether Kitzhaber’s emails were private because Kitzhaber used email accounts other than his government account. Willamette Week has noted that “Personal emails of public officials can be subject to the state’s open records laws if they are used to discuss public business,” which they were. Additionally, both The Oregonian and Willamette Week have reported that Kitzhaber’s office asked DAS in 2011 to start archiving his personal emails on state servers. Willamette Week notes “Those emails, even if they were sent from or received by his personal email accounts, would be public records if stored on public servers.”

After the media was stonewalled for seven months on records requests, local newspapers obtained some number of Kitzhaber’s emails. The source still has not been identified – there is speculation that state workers leaked the emails and there has even been speculation that Kitzhaber staff leaked the emails.

Then, just hours into Gov. Kate Brown’s administration, DAS Director Michael Jordan called on the Oregon State Police (OSP) to begin a criminal investigation into the leaked emails. The Oregonian reported that Jordan was “one of Kitzhaber’s closest allies in state government,” and that “many sensitive state emails have leaked over the years, but none have sparked a known criminal probe. The leaker at worst likely could face a relatively minor criminal charge… a misdemeanor.”

Willamette Week reported that it’s unusual for the OSP to investigate misdemeanors. One of the DAS manager’s emails “said an OSP detective looking for the email leaker told him the investigation was ‘purely political.’

The Oregonian reported that a criminal law expert said “The seriousness of the investigation will likely send a message to public servants who want to blow the whistle on misconduct,” and that it wouldn’t be surprising if this had “a chilling effect on future whistleblowers/leakers.” The Oregonian also spoke with a politics professor who “said the leaker may have been a whistleblower whose primary motivation was to avoid improper destruction of public records. He called a criminal investigation ‘overkill’ and said it conflicted with Brown’s public statements embracing transparency.”

Two high-ranking DAS managers were put on “administrative leave.” One of those managers “is the same manager who blocked a well-publicized effort by Kitzhaber’s staff to delete copies of his personal emails stored in state archives.”

Getting rid of Michael Jordan was a good first step, but Gov. Brown made a huge mistake in not immediately suspending the investigation and publicly stating she thought it was wrong. She is continuing to make a huge mistake by allowing the investigation to continue.

Brown needs to immediately halt the “purely political” investigation into the DAS employees. Additionally, she needs to publicly denounce the thuggish behavior of Michael Jordan and just as publicly praise the courage of the DAS workers. Even that won’t be enough though. The damage that’s been done cannot be overstated. The culture of fear that’s been created by this outrageous retaliation is going to take a long, long time and a great deal of persistent effort to undo.

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UPDATE – 5/8/2015 Willamette Week:The state’s criminal investigation into the release of Kitzhaber’s emails—which were stored on a state server and concerned many aspects of state business and are therefore public records—is continuing.

UPDATE – 5/27/2015 Willamette Week: The Whistleblower – Michael Rodgers has a secret: He’s the one who leaked Gov. John Kitzhaber’s emails. Here’s why he did it.