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 bills 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.
Please remember--if we do not stand up for rural Oregon, no one will.
Best Regards, Doug
Senate District 28
Email: Sen.DougWhitsett@state.or.us I Phone: 503-986-1728 Address: 900 Court St NE, S-311, Salem, OR, 97301 Website: http://www.oregonlegislature.gov/whitsett
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