January 6th, 2011 By NIGEL JAQUISS | News | Posted In: CLEAN UP, Politics

ODOE-Gate: Mark Long's Lawyers Say Kroger's Search Illegal, Threaten to Sue

David Frohnmayer

The former interim director of the Oregon Department of Energy, Mark Long, has filed a tort claim notice [PDF] with the State of Oregon, threatening to sue for what his attorneys term the "warrantless search and seizure, without probable cause" of his work computer.

The tort claim notice, which WW obtained yesterday under a public records request, increases the likelihood that controversy will linger in the New Year surrounding ODOE and a subcontract with the agency held by Cylvia Hayes, the longtime companion of Gov.-elect John Kitzhaber—who takes office next Monday, Jan. 10.

"By copy of this letter to the Director of the Oregon Department of Administrative Services, Mr. Long gives notice," the Nov. 29 letter from attorneys Bill Gary and Dave Frohnmayer reads, "of a claim for damages arising from this violation of his constitutional rights against you [Sean Riddell, head of the Oregon Department of Justice's Criminal Division], the agents who conducted the warrantless search, the Attorney General, the Oregon Department of Justice and the State of Oregon."

Long and three of his former ODOE subordinates remain on administrative leave related to a DOJ criminal investigation into contracting practices at ODOE, and specifically an Energy Assurance Grant award to the engineering firm R.W. Beck that included a subcontract to Hayes' company, TEEM Inc.

The tort claim notice may explain a request this week from Gov. Ted Kulongoski, whose term ends Jan. 10, that DOJ allow the hiring of an outside counsel to further probe contracting practices at ODOE. Even though he is governor, state law requires Kulongoski to get permission from Attorney General John Kroger to hire outside counsel.

In his Jan. 4 request for the hiring of such a counsel, Kulongoski cited an unspecified "potential conflict of interest," that might preclude DOJ from further investigating ODOE. If Long moves forward with a lawsuit against DOJ for its conduct in investigating him, such a legal action could be the potential conflict of interest that Kulongoski cited.

But Kulongoski's spokeswoman, Anna Richter Taylor—while acknowledging the tort claim complicates any future DOJ investigation of ODOE's contracting practices—says it isn't the governor's only reason for seeking an outside, independent counsel.

"The tort claim is one of several concerns the governor has," Richter Taylor says.

The tort claim also raises the stakes in a fascinating battle.

As previously reported, Long's lawyers at the Harrang Long firm are among the best in the state and possess perhaps unparalleled knowledge of inner workings of the Oregon DOJ. Gary is a former Oregon solicitor general and served as deputy AG under Frohnmayer (pictured above), who was the state's AG from 1981 to 1991.

Another law partner of theirs, Pete Sheperd, served as the top deputy to Hardy Myers, who was AG from 1997 to 2009. So effectively almost every DOJ lawyer or investigator who has worked for the agency in past 30 years reported to lawyers who are now adverse to the agency. (Kulongoski was AG from 1993 to 1997.)

As a hard-charging newcomer, Kroger, who won election in 2008, has naturally ruffled some feathers among DOJ personnel. His agency also embarrassed Frohnmayer, who served as president of the University of Oregon from 1994 to 2009, by forcing the ouster last year of longtime U of O general counsel Melinda Grier, over the botched contract of former U of O Athletic Director Mike Bellotti.
 
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