On Feb. 15, Oregon Bureau of Labor and Industries Commissioner Brad Avakian filed an unusual and contentious legal brief [PDF]. Although Avakian is an experienced lawyer, it's unusual that a bureau head would write the document himself rather than employing a lawyer from the Oregon Department of Justice, as state agencies normally do.
The brief is contentious because Avakian minces no words in his characterization of Attorney General John Kroger, with whom he has previously clashed over turf, and who refused to allow Avakian to hire outside counsel in the case.
At issue is an employment complaint originally filed in 2004 by former Portland State University education professor Lisa Wilson. Wilson, who taught at PSU's Graduate School of Education from 1998 to 2004, claimed her contract was not renewed because she raised concerns about the alleged sexual harassment of a colleague.
Wilson, a member of the American Association of University Professors, filed a union grievance and a complaint with BOLI, which handles civil rights and wage complaints.
Part of the case hinged on whether Wilson had the right to pursue her complaint via both a union grievance and a BOLI complaint. Her lawyer argued that she was contractually allowed to do both. PSU, through its lawyers at the Oregon Department of Justice, argued she was not.
Now, the Association of University Professors is appealing [PDF] to the Oregon Supreme Court. Avakian wanted to file a brief in support of the union's position but Associate Attorney General David Leith informed Avakian's counsel that DOJ could not argue both sides of a case and would therefore not represent him.
"Given the Attorney General's responsibility to supervise the State's
civil litigation, it would be strange to authorize an agency to file a
brief -- either through DOJ or by separate counsel -- essentially
opposing the State's legal position. That would be an abdication of the
Attorney General's responsibility as the chief law officer of the State," Leith wrote in a Feb. 7 email.
Nor would DOJ, which must give permission before any state agency can hire outside counsel, consent to Avakian hiring an independent lawyer.
So Avakian decided to represent his agency himself.
"Attorney General Kroger asserts union workers lose their grievance rights when they file a civil rights complaint with BOLI, while Commissioner Avakian asserts union workers keep their grievance rights in such cases," Avakian wrote in a Feb. 15 brief. "Attorney General Kroger, claiming a position contrary to Commissioner Avakian, refused to represent BOLI in this appearance [before the Supreme Court]. As a result, BOLI request Attorney General Kroger to agree to BOLI's hiring of outside counsel. Despite Attorney General Kroger's conflict of interest, Attorney General Kroger refused to agree to outside counsel. This unprecedented act left BOLI without any legal counsel on this issue—an issue which is critical both to BOLI'S jurisdiction and to the civil right of the state's union employees."
That last sentence is important. Avakian and Kroger—who won the AG's race in 2008 with the help of unusually strong union backing—are ambitious Democrats and will look to public employee unions for help in future races.
As for Kroger's refusal to let Avakian hire outside counsel, Kroger's spokesman, Tony Green, says his boss was simply following the law.
"The Attorney General establishes the legal position of the State of Oregon," Green said in an email. "State law does not allow the AG to appoint conflict counsel when there is a disagreement about what the state's legal position should be."
The Oregon Supreme Court often takes several months to decide whether to accept a case, so it is unclear when and if the next round of this case and the faceoff between Avakian and Kroger will occur.