A Marion County judge ruled last week on an arcane but important point in the ongoing battle over the results of an Oregon Department of Justice investigation into contracting practices at the state Department of Energy.
The Justice Department announced Dec. 29 that it would not charge any of the four agency employees involved in a contract with the engineering firm R.W. Beck with official misconduct. But those four employees remain on administrative leave pending the unusually complicated resolution of the case.
In short, state investigators gathered an enormous amount of material during their probe, which ran from August until late December. Normally that information would be made public upon DOJ's announcement that its investigation was complete. But in this case, the investigative file has been tied up in legal wrangling between DOJ and lawyers for the four suspended employees. An added complication is that before leaving office, former Gov. Ted Kulongoski asked retired Judge Frank Yraguen to review the results of the DOJ investigation as it pertained to the future status of the four employees.
Yraguen completed his report March 4. That report is now being reviewed by various state agencies and the governor's office. (A big part of the reason there has been so much interest in the investigation is that one of the parties involved, a Bend subcontractor called TEEM LLC, was run by Cylvia Hayes, Gov. John Kitzhaber's longtime companion).
On March 11, Marion County Judge Joseph Guimond ruled that material DOJ gathered under criminal subpoena from R.W. Beck should not be part of the file that will eventually made public. That ruling potentially deprives the public of written communication concerning R.W. Beck's decision to subcontract part of its work for ODOE to Hayes' company. How and why Beck made that decision and whether it was coerced into doing so by ODOE employees seeking to curry favor with Hayes or Kitzhaber is at the center of the investigation.
Guimond's ruling came after lawyers from former ODOE director Mark Long, one of the four suspended employees, objected to DOJ making public any material gathered under criminal subpoena. So, Long's lawyers triumphed on that point.
But their victory may be shortlived, for two reasons: first in its reporting, The Oregonian has disclosed that it managed to obtain some or all of the DOJ investigative file, which means that the material Judge Guimond is seeking to suppress is already likely in the public domain.
Second, and perhaps more important for Long and his ODOE colleagues, people familiar with Judge Yraguen's review of the DOJ file say that he reached the same conclusion as DOJ—that even if they did not commit a crime, Long and the other ODOE employees should be fired.