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.
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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.
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