As soon as next week, Oregon Attorney General Ellen Rosenblum will introduce the most ambitious effort in decades to strengthen the state's public records and meetings law.
Oddly, a judge last week castigated lawyers who work for Rosenblum for trying to evade the public records and meetings law that already exists.
Marion County Circuit Judge Claudia Burton ruled Jan. 17 that the Oregon Department of Justice withheld information from the public relating to the firing of a state agency director. The judge blamed the "bad advice" offered by DOJ lawyers for violations that "eviscerated" state transparency laws.
In her Jan. 17 ruling, Burton said the board of SAIF Corp., the state-owned workers' compensation insurer, violated Oregon's public records and meetings law when it met in private in May 2014 to discuss then-CEO John Plotkin's future at the company and decided to fire him.
The law says public bodies such as the SAIF board, whose members are appointed by the governor, "may not meet in private for the purpose of deciding on or deliberating toward a decision."
The SAIF board did so, Burton said, on the advice of DOJ lawyers.
In announcing her ruling last week, Burton blasted the efforts of Rosenblum's agency to hide information from the public. (Disclosure: Rosenblum is married to a co-owner of WW's parent company.)
"The policy behind the [public records and meetings law] is that the public needs to see the deliberations and the public needs to know what information the decision was based on," Burton said. "It eviscerates the act if a decision of this level of public interest can be deliberated on and the information kept behind closed doors in violation of the act."
In a statement, Rosenblum says she is committed to transparency. "In this case, we do not have a written ruling from the judge," Rosenblum said. "And the matter is complicated by the fact that a relevant case was decided by the Oregon Court of Appeals after DOJ's legal advice was given. Nevertheless, I intend to ensure that all future advice pertaining to public meetings is consistent with my commitment to transparency."
Burton's ruling highlights a conflict within the DOJ.
The agency is responsible for enforcing transparency laws, and at the same time, its lawyers provide legal advice to state agencies such as SAIF that may want secrecy.
One of the state's most experienced public records lawyers says there's no doubt which duty comes first.
"DOJ's first responsibility is to follow the law," says Jack Orchard, who represents the Oregon Newspaper Publishers Association. "The law says the presumption is in favor of disclosure and transparency. But in too many cases, that presumption gets turned upside down."
Oregon's public records and meetings law is the state's primary vehicle for government transparency. That law provides citizens, including the press, access to government documents, and allows them to be present when government bodies deliberate and make decisions.
In October 2015, Rosenblum convened a task force to strengthen that law. Her decision followed the Feb. 18, 2015, resignation of Gov. John Kitzhaber, amid an investigation into influence peddling. Kitzhaber's administration had long stonewalled requests for public records.
Last month, Rosenblum presented lawmakers with draft legislation generated by her task force. The primary reform the committee discussed is the creation of an independent public records advocate who would resolve disputes, a bill that Gov. Kate Brown will carry in the Legislature.
But the Plotkin case shows Rosenblum's office does not always practice what she preaches.
The SAIF board fired Plotkin from his $325,000-a-year job in May 2014, just three months after hiring him. ("House of Cards," WW, July 1, 2014). Plotkin's high-profile departure caused a backlash among employees and generated substantial media coverage.
Burton ruled Plotkin must be rehired or paid damages.
On Jan. 23, SAIF settled with Plotkin for $1.7 million.
The ruling is both a major victory for Plotkin and a black eye for Rosenblum's agency, given some of the revelations in the case.
As the case unfolded, Plotkin's attorney, Dana Sullivan, turned up what she says is a smoking gun. The DOJ lawyers advising SAIF, Tessa Sugahara and Herbert Lovejoy, relied on a 2013 DOJ memo laying out a road map for agencies seeking to skirt transparency laws.
The subject line in an email containing the memo reads, "Dealing with at-will exec directors without public discussion."
Burton found the DOJ's legal advice placed SAIF's desire for secrecy ahead of the public interest.
"The policy is not just to let the public watch the vote," she said. "It's to let the public watch the deliberations and to let the public know the information underlying those deliberations."
DOJ lawyers argued that exemptions to the transparency law protect attorney-client communications and allow public boards to meet in private if they are discussing potential litigation or advice from their attorneys.
Burton acknowledged there are instances in which such exemptions apply, but she found the DOJ and SAIF were misusing them.
"I have seen throughout this litigation there's sort of this 'Abracadabra, the lawyer was there. Abracadabra, everything is secret,'" she said in her ruling. "It just does not work that way. The mere fact that a lawyer was in the room does not give you the Get Smart Cone of Silence where nobody ever gets to know what's going on."