Further ethics reform still needed in Oregon

by Sen. Doug Whitsett

Former Governor John Kitzhaber remains the subject of occasional headlines reminding Oregonians of the aftermath of his brief fourth term in office. Nearly eight months after his resignation, news reports make clear state taxpayers are not finished paying for the mistakes of his troubled administration.

Our citizens demand and deserve to have their public officials held to a higher standard. A few steps have already been taken to help prevent the kind of alleged misconduct that lead to Kitzhaber’s ouster. Additional efforts are underway to further strengthen Oregon’s ethics laws.

Michael Rodgers is the whistleblower who exposed apparent efforts by officials to delete e-mails from state computer servers. A settlement totaling almost $300,000 was recently reached between the State and this former Department of Administrative Services employee.

Another recent article details an ongoing court battle between software firm Oracle and the State regarding the delayed release of Kitzhaber’s e-mails. In that court filing, Oracle’s attorneys wrote that neither the offices of Governor Kate Brown nor Attorney General Ellen Rosenblum have “provided any explanation for why during the five months since Oracle submitted its public records request, no one has yet reviewed these 1,000 documents or turned them over to the State for release to the public.”

These related issues illustrate the depth of the scandals that forced Kitzhaber’s resignation last February, as well as inadequate action by the current administration to address the consequences of those issues. Some of the more disgraceful proceedings were addressed through legislation passed during the 2015 session.

Oregon law does not impose deadlines for responding to public records requests. Senate Bill 9 was signed into law by Governor Brown June 15 and took effect the same day. The new law directs the Secretary of State’s office to conduct a performance audit of state agency public records retention and disclosure practices.

The audit must examine a sampling of state agencies of all sizes. It is required to make recommendations regarding practices for receiving records requests, gathering and disclosing the records, managing the retention, categorization and storage of those records, determining fee estimates and exemptions and ensuring consistency among agencies in complying with public records laws.

That audit report is required to be submitted to legislative entities and Governor Brown on November 20. Appropriate legislation is anticipated during the 2016 session to address the audit findings.

House Bill 2019 expands the membership of the Oregon Government Ethics Commission (OGEC) from seven to nine members on July 1, 2016. More importantly, it expands the Legislative role in making appointments to the Commission. The bill has been signed into law by Governor Brown.

One example of the reason this bill became necessary is that Rodgers, the whistleblower, felt that he couldn’t go to OGEC because its members were appointed by Kitzhaber.

Under the new law, the governor can only appoint one member without recommendation by the Legislature. The remainder of the appointments will be made by leadership of both major political parties in both the House and the Senate. HB 2019 also requires that no more than three members of OGEC can be registered with the same political party.

Perhaps the most important ethics reform bill to be adopted was HB 2020. This bill specifically deals with issues that arose as a result of Kitzhaber’s fiancée, Cylvia Hayes. “First Lady” has previously been an unofficial title for the governor’s spouse or companion. Neither the title nor the explanation of the duties accompanying it were defined by state statute.

The ambiguity of the role was first brought up in a Willamette Week article written by Pulitzer Prize-winning reporter Nigel Jaquiss and published almost a year ago. His investigation into the intersection of Hayes’ public role and private business proved instrumental in bringing about Kitzhaber’s resignation, as well as the multiple ongoing federal investigations into the former first couple’s conduct.

HB 2020 amended statute to provide a definition for “first partner” and adds that individual to the definition of “public official.” It also allows for the imposition of a $10,000 civil penalty for willful violation of the section of statute prohibiting the use of an official position or office to obtain financial gain.

The passage of those three bills is a step in the right direction. Unfortunately, several other bills that would have provided much-needed ethics reform failed to pass in the highly partisan atmosphere of the 2015 session. Majority Democrats used their numerical advantage to keep many of these bills from advancing through the legislative process.

Oregon is currently the only state in the nation that lacks a legal mechanism for impeachment of executive branch officials by legislators. House Joint Resolution 31 would have proposed an amendment to the state Constitution to vest the power of impeachment of statewide elected Executive Branch officials in the House of Representatives and the power to try impeachments in the Senate. Passage of HJR 31 would have resulted in the proposed amendment being referred to voters in the November 2016 general election.

If enacted by the people, the Joint Resolution would have required a three-fifths majority vote in the House to deliver an impeachment resolution to the Senate and a two-thirds vote in that chamber for a conviction. A conviction under these conditions would have resulted in removal from office and the disqualification from holding other public office. HJR 31 passed the House on a wide, bipartisan margin, but attempts to pull it out of committee failed on the Senate floor June 30 on a party-line vote.

Senate President Peter Courtney (D-Salem) stated in this Oregonian article that his opposition was based on the fact that voters can remove officials through the recall process. However, that puts the onus entirely on citizens. The growing list of requirements and regulations regarding the process makes it increasingly difficult for anyone but paid political professionals to successfully engage in Oregon initiative petitions.

HB 3331 was chief sponsored by Rep. Gail Whitsett (R-Klamath Falls). The bill would have authorized the Legislature to appoint an independent counsel by joint resolution. The resolution would request the Attorney General (AG) to conduct a preliminary investigation into alleged violations of ethics or criminal laws and report any findings to the Legislature. If reasonable grounds for further investigation were discovered, the AG could then apply to a circuit court for the appointment of an independent counsel. Sadly, efforts to bring this bill out of committee failed on a largely partisan vote.

HB 3562, prohibiting retaliation against public employees for disclosing public records or other information related to unlawful conduct, was sponsored by Rep. Knute Buehler (R-Bend). The bill required such retaliation to be punishable by up to one year’s imprisonment, a $6,250 fine, or both. The bill also would have authorized courts to award punitive damages.

Buehler’s bill was prompted by the treatment of the e-mail whistleblower. Mr. Rodgers was initially threatened with one count of official misconduct for every e-mail he leaked to Jaquiss at Willamette Week. It was subsequently revealed that Kitzhaber’s nephew worked in the office where those threats originated. Public pressure and outrage undoubtedly helped prompt the decision not to prosecute Rodgers for his actions.

Despite the obvious need for whistleblower protection, HB 3562 was refused the courtesy of a hearing by the Democrat majority. Taxpayers are now on the hook for a nearly $300,000 settlement to ensure that the whistleblower does not and cannot successfully sue the state for even more money.

Other bills that would have allowed for greater transparency, oversight and better governance were also blocked from passage by members of the majority party and its leadership.

It is currently not a crime to provide false information in the voter pamphlet statements relied on by thousands of Oregonians in every election cycle. SB 852 would have required all information published in the voter pamphlet to be true. Violations would have been punishable by five years’ imprisonment, a $125,000 fine, or both. This bill was defeated on a party-line vote in the Senate on June 17.

Legislators currently have insufficient means to compel truthful testimony from state agency personnel during committee hearings. SB 853 would have required statements made by some witnesses in legislative committees to be made under oath and subject to punishment for false swearing. The bill also died on a party-line vote in the Senate.

Too often legislators receive testimony that is evasive, purposely incomplete, misleading or simply false. I believe a legislative tool that compels truthful answers from agency personnel and others giving testimony would go a long way towards preventing fiascos like the $300 million Cover Oregon website disaster and the Columbia River Crossing boondoggle that cost taxpayers nearly $200 million from taking place.

The upcoming February session will present another opportunity for some of these concepts to be reintroduced and possibly written into law. Ultimately, the vigilance of concerned citizens is required to apply the necessary pressure for reform, by participating in the legislative process. Good governance depends on the willingness of each and every one of us to demand accountability, transparency and truthfulness. We certainly can, and must, do better.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls