The rhetoric around a recently-completed Oregon Department of Justice investigation into contracting practices at the state Department of Energy is getting even more heated.
Yesterday, Bill Gary and Dave Frohnmayer, lawyers for former Energy Department director Mark Long penned a scathing letter [PDF] to Senior Assistant Attorney General Donna Sandoval-Bennett, expressing outrage about DOJ's handling of documents gathered during its investigation. That probe by Attorney General John Kroger's office concluded Dec. 29 with a finding that DOJ "could not prove beyond a reasonable doubt that any state employee committed Official Misconduct."
The investigation over a $200,000 energy department contract is politically fraught because the subcontractor on the contract is TEEM Inc., a Bend company run by Cylvia Hayes. She is the longtime companion of Gov. John Kitzhaber. One of the questions investigators tried to answer is exactly how Hayes acquired that contract and whether energy department employees steered it in her direction. Answers to those questions may lie in the thousands of pages of emails and interview transcripts and other materials DOJ gathered in its investigation, which stretched from mid-August until the end of December.
Earlier this month, DOJ notified lawyers for Long and three other energy department employees, all of whom are on administrative leave, that it would make its investigative file public on Jan. 13 (later extended until Jan. 20) unless one or more of the employees sought a "name-clearing hearing" in which case the release of the documents would be delayed until after the hearing(s).
Yesterday's letter from Gary and Frohnmayer (both of whom used to work at DOJ; Frohnmayer as Attorney General from 1981 until 1991 and Gary as his top deputy for much of that period) took strong issue with the proposed release of much of the material; and raised questions about the "name-clearing" process. Most significantly, their letter also accused DOJ prospectively of violating Oregon law if it releases certain information gathered in its investigation.
"By letter dated November 29, 2010 to Sean C. Riddell, Chief Counsel to the Criminal Justice Division, we objected to the Department of Justice's unconstitutional manner of serving a criminal subpoena as a warrantless seach, to obtain Mr. Long's work computer," Gary and Frohnmayer wrote in a Jan. 18 letter. "We demanded that the Department of Justice take several specific steps to mitigate the damage done to Mr. Long as a result of that violation of his constitutional rights. That letter was ignored. Now the Department of Justice has compounded the violation with a flagrant violation of the statutory requirement that information obtained through a criminal subpoena not be disclosed."
Gary and Frohnmayer assert that Long is "entitled to a contested case hearing," in which he could call witnesses, create an official record containing "findings of fact, conclusions of law and a disposition," rather than a vague, undefined process.
The lawyers also blast DOJ for presenting a massive (running to nine CDs) file that lacks an index or any organization, and in their reading, tells more about DOJ than any of those involved in the contract in question.
"We believe the complete investigation file demonstrates that the manner in which this criminal investigation was conducted raised far greater public concern than the events at the Department of Energy that prompted it," Gary and Frohnmayer write.
The DOJ is preparing a response to the letter and we will update this post with that response.