Here's What's Holding Up Release of Documents in Energy Department Investigation

Although much of today's focus in Salem is on the start of Gov. John Kitzhaber's historic third term, some unfinished business relating to Attorney General John Kroger's investigation of contracting practices at the Oregon Department of Energy is also inching toward resolution.

As WW reported last week, Gov. Ted Kulongoski, who leaves office today, has hired retired Malheur County judge Frank Yraguen to review Kroger's investigation. In large part, that decision is so Kitzhaber doesn't have to be the person who decides the fate of four ODOE employees who remain on administrative leave related to the investigation.

Kulongoski wanted to relieve his successor of involvement with those employees, because the focus of the investigation was an ODOE subcontract obtained by Bend renewable energy consultant Cylvia Hayes, Kitzhaber's long-time companion.

Historically, when the AG's office completed an investigation, the agency released the underlying documents gathered (emails, interview requests etc.) to reporters who requested them.

But since the Department of Justice told Kulongoski on Dec. 29 that the investigation was complete and Kroger's criminal counsel, Sean Riddell wrote to Kulongoski, "We are currently of the opinion that we could not prove beyond a reasonable doubt that any state employee committed Official Misconduct in the First or Second degree while awarding the Energy Assurance Grant," there has been an information vacuum about just what investigators discovered between August and the end of December.

Kroger's spokesman, Tony Green, says the reason for the delay is a 2009 9th Circuit Court of Appeals decision relating to statements Kulongoski made in 2006 after two SAIF Corp. officials left the agency amid controversy. The officials argued they should have been offered "name-clearing hearings" prior to Kulongoski's comments in that instance. Although the Court of Appeals ruled Kulongoski didn't know he needed to provide such an opportunity, Green says state agencies now believe they are required to do so.

Last Friday, the four ODOE employees, got notification from the state they are eligible for one-hour name-clearing hearings. They must now decide by Jan. 13 whether they want those hearings.

"If you do not accept the hearing by the deadline, DOJ intends to disclose the requested public records by the close of business January 13, 2011 or at the conclusion of the 'name-clearing' hearings for the other individuals who intend to make [name-clearing] presentations, whichever is later," wrote Scott Harra, deputy director of the Oregon Department of Consumer and Business Services to lawyers for the four ODOE employees.