STATE MyEagleNews.com Wednesday, September 18, 2019 A9 Public records council wants independent advocate By Aubrey Wieber and Claire Withycombe Oregon Capital Bureau The week in Oregon poli- tics began and ended with Gin- ger McCall. McCall, the state’s first public records advocate, announced her sudden resigna- tion Sept. 9, citing undue influ- ence from Gov. Kate Brown’s office. And, by the time the buzzer sounded on the workweek, a council vetting reforms to the state’s byzantine public records laws moved in favor of a con- cept to ensure in state law that the public records advocate and the public records advi- sory council have the maxi- mum independence the state constitution allows, and that the advocate should be a direct hire of the council. The advisory council also agreed to investigate finding an independent funding source for the office as its next priority after a new advocate is hired. But a suggestion to have a third party investigate the incident sputtered amid concerns that such a probe could re-litigate past events at the expense of future reforms. Public records, public interest The moves are a first step in making more clear what many agreed were the abundant gray areas in the 2017 law that orig- inally created the office of the public records advocate. During Friday’s meeting, McCall said she’d received emails and read hundreds of comments on news stories sup- porting the independence of the advocate. “I will tell you that the clear consensus from the public, the marching orders that we have, are to shore up the inde- pendence of this office,” said McCall, who is also the chair of the council. “And if we fail to do that, then I am glad that I will no longer serve, because I don’t think this can be an effec- tive office or effective council if we don’t act on Gov. Kate it.” Brown The office, in addition to providing education and train- ing on public records, serves as a mediator in resolving dis- putes between requestors and public bodies. Members of the public who were present at the meeting said they supported the notion of an independent advocate. “Perception matters,” Rory Bialostosky, a plaintiff in a public records case against a West Linn City Councilor who said he consulted the public records advocate in the early stages of his dispute, told the records advisory council. Scott Winkels, a lobby- ist for the League of Oregon Cities who sits on the coun- cil, advocated for a third party review of McCall’s departure and the circumstances of her departure from an agency like the Department of Justice or the Oregon Law Commission. McCall described back- channel attempts at influencing her work and urging from the governor to be a member of the “(Department of Administra- tive Services) team.” In a series of records released this week, McCall detailed her interactions with governor’s staffers over the question of to whom she reported, how she sought an opinion from the Department of Justice on the matter and her efforts trying to get more money from the legislature for the office of the advocate. “The question is, how much of this is conduct, and how much of it was structure?” Winkels said. Oregonians value access to public records, according to fig- ures that John Horvick, direc- tor of client relations and polit- ical research at DHM Research in Portland, shared on Twitter this week. In Jan- Ginger uary 2017, McCall 55% of Ore- gon vot- ers said they strongly agreed that every citizen should have “complete access to informa- tion about their state govern- ment.” Thirty percent some- what agreed with the statement. “The public has a right to know what is being done in their name,” said Ramya Krishnan, a staff attorney with the Knight First Amendment Institute at Columbia Univer- sity. “And public records laws are important because they rec- ognize that right. Without pub- lic records laws, it would be that much harder for the pub- lic to find out about things like government misconduct and corruption, because govern- ments generally don’t want to turn that information over. It makes them look bad.” Oregonians need to be able to trust that the public records advocate will be objective in responding to their requests for help, advice or answers to questions, and in resolving dis- putes between requestors and public agencies over records, McCall said. It also matters because the advocate is on the public records council, which is sup- posed to propose policies for improving access to public records. “The advocate needs to be able to zealously advocate for proposals that will improve transparency,” McCall said. “Regardless of whether or not those proposals forward the interests of an elected official.” And, generally speaking, the public should know where elected officials stand, McCall said. “In order for the public to be able to decide whether or not they want to support a par- ticular elected official, they need to know what that elected official is for and against,” she said. “If the elected official is instead asking other people to carry water for them so that they don’t have to be account- able for what they’re opposing or proposing, that’s a problem.” “The purpose of pub- lic records laws is to promote transparency and meaningful participation in self-govern- ment,” Krishnan said. “And any attempt to politicize the administration or oversight of those laws compromises that project.” “It’s good to see states that do this,” Daniel Bevarly, the executive director of the National Freedom of Informa- tion Coalition, said of creat- ing public records advocates in state government. “But it’s troubling, when you have a state that actually created an office of open government to be more transparent, to actu- ally see people violating the spirit, if not the intent, of the law to make these things inde- pendent and let them operate independently.” ‘Truly independent’ The week’s events have been a stress test for one of Brown’s ostensible tenets: transparency. Brown ascended to Maho- nia Hall in 2015 after Gov. John Kitzhaber resigned amid an influence-peddling scandal. In her inaugural speech, Brown said, “we must restore the pub- lic’s trust.” Yet public trust is shaky after McCall told a different story. And, despite Brown’s pledge back in 2015 to rebuild Oregonians’ confidence in state government, Brown has been largely quiet on the mat- ter since Sept. 9. She has not named specific reforms to the position to make it “truly independent,” as she called for Sept. 9. Spokespeople for Brown U.S. Supreme Court ruling could throw decades of Oregon convictions into question The U.S. Supreme Court could force Oregon into doing what every other state already does: requires every juror to vote to convict before a per- son is judged guilty. Such a decision by the Supreme Court in a case now before it could make it more difficult for prosecutors to get convictions and could provide a new avenue of appeal for those already convicted. The looming ruling pits some of Oregon’s crimi- nal justice reform champi- ons against each other. Attor- ney General Ellen Rosenblum recently submitted a brief to the high court, urging the jus- tices to find that split decisions are constitutional. A decision rejecting such verdicts would send the Oregon court system into disarray, she said. Rosenblum is against split decisions, but said Oregon has been following previous Supreme Court rulings that unanimity is not required. Her role in submitting a legal filing to the court was “making sure the supreme court is aware of the impact on our state justice system,” she said. For the past 85 years, peo- ple in Oregon charged with most felonies can be con- victed if at least 10 of the 12 jurors vote guilty. Oregon is the only state to allow split decisions. Recently, Louisi- ana moved away from split decisions. Rosenblum is worried that overturning a 1972 U.S. Supreme Court ruling in Apo- daca v. Oregon, which upheld split decisions, would impact past cases. The U.S. Supreme Court is considering a case from Louisiana to determine whether a split decision is constitutional. Oregon’s court system doesn’t track how the jury votes in convictions. Rosen- blum’s spokeswoman, Kris- tina Edmunson, said state Justice Department lawyers are aware of about 300 cases where there was a split guilty verdict. Rosenblum said the actual number could be much higher — potentially in the thousands. Roughly 97% of criminal cases are resolved without a trial. But in two out of three cases that do get to a jury, con- victions result from split ver- dicts, according to the Justice Department. If the Supreme Court abol- ishes split verdicts, the state wouldn’t take action to review convictions resulting from unconstitutional conduct. Instead, according to Rosen- blum’s staff, it would be up to defendants to challenge their convictions, and defense attorneys have been preparing for such appeals. Aliza Kaplan, Lewis and Clark Law School professor, said she’s puzzled why Rosen- blum is trying to sink what she considers crucial reform for Oregon’s criminal justice system. Rosenblum said, since the Supreme Court ruled in 1972 that split decisions were legal, she doesn’t think past cases should be overturned. She wants voters to approve a change to unanimity going forward. Rosenblum said either way defense attorneys will file appeals, but said her team has been preparing legal argu- ments for that. Kaplan contended in her own brief filed with the Supreme Court that split deci- sions are unconstitutional. Her brief was joined by Gov. Kate Brown, former gover- nors John Kitzhaber, Ted Kulongoski and Barbara Roberts, and several for- mer state Supreme Court justices. Trust issues The scandal comes as Brown is facing trust issues with voters. Simultaneous recall efforts are nearing the finish line in their mission to gather roughly 300,000 sig- natures to give voters another shot at approving Brown. The groups’ organizers have said Brown has disregarded the will of Oregonians in pushing policies like new carbon emis- sions regulations, giving driv- er’s licenses to undocumented immigrants and a new busi- ness tax used to fund public education. Brown’s dealings with McCall fit right into that, said Oregon Republican Chairman Bill Currier, who is leading one of the recall efforts. Currier said he was at one of the recall booths Thursday night, Sept. 12, in Mt. Angel. “There were a number of people there who mentioned the public records debacle,” he said. Currier said he has heard of an uptick in interest for sign- ing the petition this week, fol- lowing the news stories about the public records issues. How much of that is a response to the story is unclear, he said, as the effort has started to break more into urban areas. Brown came into office after Gov. John Kitzhaber resigned due to a transparency scandal. She promised to be a transparent leader, but Currier said she’s been anything but. “She promised to make transparency a priority,” he said. “Essentially what she’s done is made blocking it and objecting to it every step of the way a priority.” Currier declined to say how many signatures the GOP effort has, but repeatedly said “we’re where we need to be,” and that he thinks the effort can be successful. The incident has also raised questions about Brown’s recent appointment of her gen- eral counsel, Misha Isaak, to the Oregon Court of Appeals. Two complaints about Isaak have been lodged with the Ore- gon State Bar. And the Ore- gon Territory chapter of the Society of Professional Jour- nalists called on Brown to rescind Isaak’s appeals court appointment. The governor’s office has looked into whether judicial appointments can be rescinded. But no announcement has been made. “When the governor’s chief counsel, who’s responsible for lining up judicial appoint- ments, then becomes a nomi- nee for a judicial appointment they are really underqualified for, it’s inappropriate,” Currier said. Commission taps Strickler to lead ODOT By Claire Withycombe Oregon Capital Bureau Oregon’s transpor- tation commissioners have chosen Kris Strick- ler, head of the Oregon Department of Transpor- tation’s highway divi- sion, to be the agency’s new leader. The commissioners voted on the appointment Tuesday evening, chosen after a national search to replace longtime director Matt Garrett that took six months. Before leading ODOT’s highway divi- sion, Strickler was the Southwest Regional administrator at the Washington Department of Transportation. In an earlier role at ODOT, he led the Columbia River Crossing project for the department. That effort to replace the Interstate 5 bridge across the Colum- bia River failed, largely because Washington law- makers backed out of $450 million they com- mitted for the project. Strickler’s appoint- ment five years later comes as Oregon law- makers have renewed the charge to work with Washington to replace the bridge. Strickler must be confirmed by the Ore- gon Senate, and his pay and benefits will be negotiated in the coming weeks. “I’m eager to lead the agency in this dra- matic time of growth in our state and to work to modernize our transpor- tation network, diversify the department’s work- force, and bring innova- tive solutions to achieve Oregon’s transportation, environmental and eco- nomic goals,” Strick- ler said in a statement shortly after the vote. Garrett stepped down in June after nearly 14 years at the helm. Strickler will man- age an agency with an annual budget of about $2 billion. He will con- tinue carrying out proj- ects funded by a major bill lawmakers passed in 2017 that raised $5 bil- lion for a decade’s worth of transportation projects. In a statement, Gov. Kate Brown called Strickler “the right per- son to help ODOT con- tinue its transformation.” “He has driven the agency’s vision for how to address the complex mobility needs of our region and brings strong interstate partnerships to bear,” Brown said. Raise a voice of Awareness Mourn, Celebrate, Connect Join the Blue Mountain Eagle as we connect with local partners to campaign for Domestic Violence Prevention October is Domestic Violence Awareness Month We will be donating half of all the proceeds to the Heart of Grant County for Domestic Violence Awareness Monday - Thursday 7am- 6pm Friday 8am - 5pm Mendy Sharpe FNP Th e Blue Mountain Apppointments available Talk to Kim about pricing and supporting a great cause! EAGLE 139101 By Aubrey Wieber Oregon Capital Bureau did not respond by deadline to a list of written questions from the Oregon Capital Bureau Fri- day, instead providing a pre- vious statement clarifying spokesman Chris Pair’s claim that McCall’s allegations were false. He said that claim was made before McCall’s memos were released. “It was in response to the general allegation made in the resignation letter to Gover- nor Brown that the governor’s office did not share the view that the Public Records Advo- cate should operate with a high degree of independence,” Pair wrote in an email. “The gov- ernor’s office does share that view.” Brown and McCall met on Sept. 11. “It was a brief, but friendly meeting,” McCall said. “She asked me for my thoughts on the independence issue and what could be done, and I pro- posed a couple of just initial reforms that I thought would be helpful, but that the coun- cil’s going to be meeting and I hope that the council will come up with more robust ideas.” McCall said she thought it would be “great” if Brown committed to making changes to address the problem. www.MyEagleNews.com Call Kim Today 541-575-0710 kim@bmeagle.com