Cylvia Hayes

A Closer Look at Oregon's Public Records Law

Gov. Kate Brown is seizing on an opportunity to explore public records law improvements. 

Gov. Kate Brown is seizing on an opportunity to explore public records law improvements. 

It's strange to imagine anyone feeling a sense of gratitude in pondering John Kitzhaber's tarnished legacy.

But somewhere down the line – after many years of healing and fading memories – Oregonians may actually thank the former governor for making one particular lasting difference for the better. At least that's the hope after Gov. Kate Brown recently commissioned a task force of lawmakers, lobbyists and an accomplished investigative reporter from The Oregonian to take a closer look at Oregon's public records law.

It was, after all, Kitzhaber's questionable dealings with his ever-puzzling fiancée Cylvia Hayes that served as the impetus for revisiting the law. Without the famous scandal that ultimately pushed him out of office amid a criminal investigation – and Kitzhaber’s attempts to block and delay the release of many telling emails – we honestly wouldn’t be at this point.

The crux of the issue is the question of where the balance lies between the public’s right to know what’s going on inside the government and our elected officials’ right to privacy.   

Of course, the whole situation is actually driven by the media. If Willamette Week reporter Nigel Jaquiss hadn’t dug into what was going on behind the scenes, the Kitzhaber stories may have never seen the light of day.

The task force is also getting started in a critical era for the media. As news organizations continue to struggle with dwindling staffs and shrinking ad revenue, the future of watchdog journalism looks less and less certain. With an ailing press, the propensity for undetected government corruption only grows, leaving the public out of touch with what their elected officials are doing.  

Kitzhaber’s story aside, maybe it was just time to take another look at the rules anyway. The Oregon Association of Broadcasters and the Oregon Newspaper Publishers Association argue we need to bring order to all of Oregon’s public and private record statutes.  

A report released this week from the Center for Public Integrity ranks the quality of Oregon’s ethics and public records laws 44th in the nation. Overall, that report handed Oregon an “F” in government accountability, directly referencing the Oregon Government Ethics Commission’s slow response to the Kitzhaber scandal.

It sounds bad, but the picture actually isn’t that simple.

Oregon has a basic public records law with an assumption that everything is public. In the strongest possible terms, all attorneys general in recent memory have advised state officials that they should assume all records are public and that they can be protected only if they qualify under one of the exemptions.

The law was created in 1973, and today it has more than a few dozen exemptions. Many of those are justified, of course, so don’t expect all of them to be stricken from the books. Trade secrets, records pertaining to pending litigation, evidence compiled in an open criminal investigation. All of that is exempt from disclosure under the law, and for good reason.  

But then one also has to wonder whether the law as it stands is to blame for why Kitzhaber and Hayes were able to keep their scandal under the radar so long.

If government officials want to keep records private, even in contravention of Oregon law, they can do so in a couple ways. They can stall on making records available, contending that it’s too time consuming to produce them. Or, they can charge too much for the task of retrieving the documents.

Charging a minor fee is legal under the law, but the size of the fee can become an obstacle. Metro, for instance, demanded KOIN pay about $17,000 for records in an investigation of the Oregon Zoo’s elephant facility. In some newsrooms, such a cost can be a deterrent to pursuing a story. 

The increased use of email systems in recent years has made public records issues far more complex since the law’s genesis 42 years ago. In fact, that hits at the central question of the investigation into Kitzhaber and Hayes: Did they use private email systems to conduct public business and then shield the emails from public scrutiny?  

As it turns out, news organizations have also played a role in complicating the public records issue. Occasionally, reporters make blanket requests for access to email records over a long period of time, which only adds to the government’s difficulty in complying.

Those are some of the biggest questions the task force will have to tackle in the coming year.

But of course, no matter where you stand on the question of the effectiveness of the law, there’s no denying that without a solid system of public access to government records, democracy suffers.

CFM Partner Emeritus Dave Fiskum contributed to this post.  

The Approachable, Pragmatic Governor Brown

Governor Kate Brown is a self-described people person and a stark contrast to her predecessor, John Kitzhaber.

Governor Kate Brown is a self-described people person and a stark contrast to her predecessor, John Kitzhaber.

In a New York Times feature story published earlier this month, Governor Kate Brown comes across as the life of the party, in stark contrast to the reclusive reputation of her predecessor, John Kitzhaber.

Brown says of herself, "I'm a people person." Kitzhaber, a former emergency room doctor, was often characterized by friends and foes alike as someone happy to sew up a patient without having to strike up a conversation.

Brown's ascension as Oregon's governor when Kitzhaber resigned amid a building ethics scandal was serendipitous because of the marked difference in their personalities. She bounds down Capitol hallways where Kitzhaber was rarely spotted. She banters with lobbyists, whereas Kitzhaber tried to avoid them. She chose to live in Mahonia Hall, the governor's official residence, which Kitzhaber treated more like a Salem bed and breakfast.

By all accounts, Brown's more outgoing, approachable style has been viewed as a welcome respite from Kitzhaber, who one lobbyist called a political ghost. She is seen as politically popular, which doesn't hurt as she faces an election in 2016 to fill the remaining two years of what was Kitzhaber's unprecedented fourth term.

The Times cites a poll taken in May showing Brown has earned a 55 percent job approval rating. She gets good marks in the poll from 40 percent of people who identify themselves as Republicans. Numbers like that tend to scare off would-be challengers, even those who whisper that Brown is a liberal Portland Democrat. That's not always a good thing for voters living outside Portland, even just outside Portland.

While Brown's voting record supports the label of "liberal," her political style is more inclusive. As Senate majority leader, Brown listened to almost anyone willing to schedule an appointment, without turning a conversation into a polemic. The term "pragmatic" would have been fairly applied to her as she understood her role was to find common ground, not stake out high-minded positions.

Brown has stepped into the higher pay-grade as governor with political grace. She encircled herself with new staff, but retained the policy staff left behind by Kitzhaber, which provided a smooth transition working with a legislature already underway.

Brown generally supported the main thrust of Kitzhaber's agenda and didn't try to imprint them with her own stamp to gain glory. Instead, she focused on ethics legislation, much of which she had introduced in her role as secretary of state.

Late in the 2015 session, Brown attempted to engineer a compromise to pass a transportation funding bill that business and labor groups had pushed. The compromise required backing off somewhat or entirely from a clean fuels carbon reduction measure passed earlier in the session, despite strong Republican protests, in part because the bill had been tainted in their minds by its association with Cylvia Hayes, the first lady under the Kitzhaber administration.

Some in the environmental community were upset at Brown's willingness to roll back the clean fuels measure, but others took it as a positive sign that she wasn't a captive to our ideology.

Kitzhaber was renowned for his ability to get people with disparate interests in a room and pound out a path to progress that often avoided politically divisive ballot measures. That is role Brown has yet to fill, but may have a chance as the November 2016 general election ballot could be loaded with initiatives from a variety of political directions.

For now, the Times noted, Brown is demonstrating she isn't anything like Kitzhaber. When a group of Chinese tourists wandered into the Governor's office, Brown came over to talk, encouraged them to take the formal tour and posed for a picture. There aren't many pictures of Kitzhaber doing that.

Kitzhaber Wins Re-election, But by Narrow Margin

Governor John Kitzhaber claimed an unprecedented fourth term without a majority, and the measure that gained the widest national headlines was approval of Measure 91 to legalize the use, sale and production of marijuana.

Governor John Kitzhaber claimed an unprecedented fourth term without a majority, and the measure that gained the widest national headlines was approval of Measure 91 to legalize the use, sale and production of marijuana.

Democrats retained and even strengthened their grip on control of the state house and legislature as Oregonians said yes to legal weed and no to labeling of genetically modified foods and the much touted top-two primary. The story wasn't so good for Democrats nationally as they saw their majority in the U.S. Senate evaporate, giving Republicans control of both houses of Congress.

The story of the night was the relatively narrow victory by Governor John Kitzhaber, who claimed an unprecedented fourth term without a majority. On a series of critical news reports about First Lady Cylvia Hayes, including charges she may have leveraged her influence with the governor for personal gain, Kitzhaber's double-digit lead in the polls shrunk to a 5 percentage point victory.

The tighter-than-expected race appears to be more a reflection on Kitzhaber than his GOP opponent Dennis Richardson and raises questions about how the governor will fare going forward, especially if the Hayes scandals continue to dog his administration.

The other race of interest and significance involved a rematch between former Rep. Chuck Riley and incumbent GOP Senator Bruce Starr. Riley led in early voting results, but Starr now hows a thin 123-vote lead in a race that may be headed for a recount. If Riley manages to upset Starr, it would give Senate Democrats an 18-vote majority, enough to pass funding measures without any Republican votes.

Democrats retained control of the Oregon House by a margin of 35-25, one vote shy of the three-fifths majority to move tax measures without help from across the political aisle.

All of Oregon's incumbent congressional delegation up for re-election, including Senator Jeff Merkley, won handily.

Senate President Peter Courtney, whom some thought might face a tough re-election battle, prevailed with more than 53 percent of the vote. On the flip side, Rep. Jim Weidner, a Republican representing McMinnville and one of the most Republican-leaning districts in the state, won by a surprisingly narrow 51 to 46 percent measure over Democratic challenger Ken Moore. Moore campaign vigorously, while Weidner didn't.

A lot of attention and money focused on ballot measures and none more than Measure 92, which would have required GMO labeling. This is the second time Oregonians have rejected a similar measure, but this time the margin was razor thin at 50.6 to 49.4 percent, or something like 17,000 votes out of more than 1.3 million cast. (Interestingly, a GMO moratorium in Maui, which also attracted deep-pocket opponents, narrowly passed.)

The biggest loser was Measure 90, the top-two primary, which went down to defeat 68 to 32 percent. Measure 88, a referendum to overturn legislation to allow driver cards for non-residents, was defeated almost as soundly at 67 to 33 percent.

The biggest winner was Measure 89, the equal rights amendment, which passed by 63 to 37 percent.

The measure that gained the widest national headlines was approval of Measure 91 to legalize the use, sale and production of marijuana. Alaska also approved a similar measure and the District of Columbia passed a somewhat more restricted legalization. They join Washington and Colorado, which already have passed and implemented marijuana legalization schemes. Oregon's regulatory challenge will fall to the Oregon Liquor Control Commission, which announced it will move forward a policy that reflects the "Oregon way."

First Lady Faces Conflict of Interest Charge

Governor Kitzhaber and First Lady Cylvia Hayes woke up this week reading a Willamette Week article accusing Hayes of conflict of interest, which the governor denies.

Governor Kitzhaber and First Lady Cylvia Hayes woke up this week reading a Willamette Week article accusing Hayes of conflict of interest, which the governor denies.

Willamette Week delivered a pre-election wallop to Governor John Kitzhaber's re-election campaign this week with an investigative report suggesting First Lady Cylvia Hayes may have benefitted financially from her special relationship with the governor. 

Rep. Dennis Richardson, Kitzhaber's underdog Republican challenger, seized on the story and said via a statement,"The latest scandal shows once again that the State of Oregon is being run more like a mafia than a public entity. The governor and first lady are not above the law."

Kitzhaber denies any wrongdoing by himself and Hayes. He said Hayes' contracts were reviewed carefully for any conflict of interest. "We were very proactive," Kitzhaber told The Associated Press. "Very rigorous and very transparent." AP reported Hayes declared three conflicts of interest in August 2013. Kitzhaber said Hayes has no current contracts that touch on state government.

The conflict of interest charge against Kitzhaber and Hayes comes amid a continuing controversy involving GOP Senate challenger Monica Wehby, whom Buzzfeed has accused of plagiarizing health care policy talking points from Karl Rove and her Republican primary challenger, Rep. Jason Conger. 

Neither charge may affect the outcome of the November election. Polls show Wehby trailing incumbent Senator Jeff Merkley by double digits and Kitzhaber's re-election has been assumed since he announced his bid for an unprecedented fourth term. However, the charges mark a significant turn in elections in Oregon, known as one of the most politically polite places in the country.

The piece about Kitzhaber, and its timing just before general election ballots arrive in voter mailboxes, is vintage Willamette Week. The lengthy story about Hayes' work was written by Nigel Jaquiss and carried the edgy headline: "First Lady Inc./Cylvia Hayes has two careers. She pursues both out of the governor’s office."

Jaquiss' piece details when Kitzhaber and Hayes became a couple and earlier brushes with conflict of interest that popped up before Kitzhaber was elected to his third term as governor. Neither Kitzhaber nor Hayes agreed to be interviewed by Jaquiss.

Business Leaders Tackle Persistent Poverty

Oregon's poverty rate has continued to club even after the end of the last recession. Oregon business leaders will discuss how to meet their goal of reducing poverty sharply in the next six years.Oregon business leaders will gather a week from now and focus on a very untypical business topic — how to reduce Oregon's poverty level.

The Oregon Business Plan calls for reducing the level of poverty in the state from 17.2 percent to less than 10 percent by 2020. Sounds good, but how? And why do business leaders care?

The answer stretches over several subjects — ensuring a trained, available workforce, restoring economic prosperity to rural communities and making Oregon an appealing place for outside investors. After all, who wants to invest in a state that some call the Appalachia of the West?

Leadership summits often hover at the grasstops of problematic issues, but this year the Oregon Business planners are definitely getting into the thick weeds. After the obligatory morning sessions about success stories, the afternoon sessions dive into subjects such how to connect workforce training with actual careers, grow profitable minority and women-owned small businesses, finance public works that make communities ready for new development and tap the natural resources key to returning rural economic health.