Forget fines — Oregon prefers warnings for public officials guilty of ethics … – OregonLive.com
The Oregon Government Ethics Commission has negotiated reduced penalties for every case it’s handled involving a public official since 2008, an analysis of records shows.
In half the cases, public officials who admitted to violating ethics laws got off with a warning. Fines the commission has imposed have been a fraction of what the law allows. The median fine in recent years for misusing public office: $75.
Last year alone, the commission issued 27 orders for ethics violations – cases that represented potential penalties totaling $260,111. Total fines actually issued: $7,900.
Oregon Government Ethics Commission
Chairman Kenny Montoya, 48
Marion County assistant legal counsel; term expires 6/30/2017
Ian Whitlock, 57
Port of Portland attorney; term expired 4/5/2015
Charles Tauman, 70
Portland attorney; term expires 12/12/2016
Mary Kremer, 60
Portland lobbyist; term expires 3/12/2017
Marilyn Cover, 61
Lewis & Clark College adjunct law professor; term expires 4/30/2017
Dan Golden, 61
Klamath County administrator; term expires 5/31/2018
Jan Hooper, 68
North Bend, retired; term expires 6/25/2018
That’s not what Oregonians had in mind in 1974 when they overwhelmingly voted for an ethics watchdog to keep the state’s public officials honest.
Public attention locked onto the commission last October, when then-Gov. John Kitzhaber faced multiple ethics complaints over the handling of fiancée Cylvia Hayes’ business deals.
If history is any guide, Kitzhaber doesn’t face much threat from the commission.
It might have been different a decade ago.
When the commission was created by voters in the post Watergate era, it had as its mandate the ability to use a big stick to keep government officials in line. Prior to 2008, it often did just that. But an Oregonian/OregonLive analysis shows that the commission has deliberately lightened up on those accused of abusing their public positions. The analysis was based on a review of the last 15 years of commission data.
Kevin Lafky, a Salem attorney who represents whistleblowers, tracks complaints his clients file with the ethics commission. He said the agency’s approach discourages people from coming forward.
“If there is a finding of some violation — which rarely ever happens — there’s no meaningful penalty,” he said.
State Rep. Brian Clem, D-Salem, who participated in major ethics reform in 2007, was surprised by the commission’s shift.
“I would have thought (enforcement) would have gone significantly up, and more severe fines,” said Clem.
Legislators are considering a new round of reforms this session, but none would change the commission’s approach.
Ethics commissioners and their executive director don’t dispute the findings of The Oregonian/OregonLive.
“The commission is not one where we stand there looking to punish someone,” said Kenny Montoya, commission chairman.
Montoya and Ron Bersin, a former revenue agent who is now commission executive director, said the commission relies on education and training to keep public officials honest.
Ethics commissioner responds
“The responsibility of the Oregon Government Ethics Commission – under the law and best practices – is to treat each case individually – to consider the law as it applies to each case and to consider the individual facts of each situation. The Commission applies the law to the facts of each individual case and then applies its best judgment to come out with the appropriate results. And I believe the results the Commission has produced, generally, have been appropriate.
Can someone who is not familiar with all the facts and all the legal principles second guess those results? Sure, but as a body of work – at least in the time that I have been on the Commission – I believe the Commission has acted fairly, justly, expeditiously and appropriately, statistical comparisons to other eras notwithstanding.”
— Chuck Tauman, Portland attorney and member of the Oregon Government Ethics Commission
But the training program for roughly 1,900 public officials a year has been pared because public agencies complained it was too long. The commission shifted to on-line education, which it reported has been less effective.
Worse, the commission could produce no complete record of who has attended training. Agency investigators often leave blank a line in case forms about whether an accused public official has gone through training. There is no systematic way to check whether public officials given light punishment had previously been taught their ethical obligations.
Bersin said the commission hammers errant public officials when it’s justified. The case files back him up on those convicted in separate criminal proceedings. They receive the stiffest ethics fines.
One dramatic instance involved Sandra Quesnoy, a court supervisor for the city of North Plains. Quesnoy was sentenced to prison and ordered to pay restitution after her criminal conviction in 2009 for stealing more than $200,000 in traffic fines. The ethics commission separately tacked on its own punishment because the theft also violated ethics laws. In 2010, the commission fined her $245,000, which is still owing.
But more often, public officials walk away with only a warning. That’s happened in nearly six out of 10 cases in recent years.
Jim Kight, former mayor of Troutdale, benefited from such leniency. He was accused of using his office to manipulate the permitting process so he could build in his backyard. He eventually admitted to two related violations. Facing a $10,000 fine, he got a reprimand.
Kight then proclaimed he had been exonerated.
Voters call for commission
Oregon’s commission was born amid the national anger over Watergate and the manipulation of federal agencies by then-President Richard Nixon.
Its mission was to keep government honest by ensuring public officials didn’t use government agencies for their own benefit.
The commission’s eight employees monitor elected officials, lobbyists and thousands of employees who work for state agencies and local governments. The commission also oversees uncounted numbers of Oregonians volunteering on everything from planning commissions to water district boards.
The commission collects annual filings from nearly 6,000 public officials required to disclose the basics of their finances. Staff also provides informal ethics advice to public officials – something it does hundreds of times a year.
For 33 years, the commission stuck to its mission. But in 2007, that changed dramatically.
A group of lawmakers, lobbyists and lawyers drafted ethics reforms for the Legislature. They proposed sharpening the twin spears used to keep public officials honest — training and enforcement.
Three attorneys working on the reform described in a law review article the commission’s performance and the need for changes. They concluded that the commission’s practice of punishing public officials already held to account in criminal courts was “redundant and a waste of resources.”
They found, though, that the commission’s overall enforcement was weak.
“Ethics standards can be rendered meaningless if the standards are not enforced,” she wrote. “The Ethics Commission was not always consistent in its fines, and it often settled cases for well below the maximums permitted by law.”
The proposal to boost the maximum penalty from $1,000 to $5,000 was adopted by legislators.
But tougher enforcement never came, and the weaknesses identified by the three attorneys persist.
Bersin makes no apology. He said he heeded public officials, lobbyists and others, who sought a tutorial rather than prosecutorial approach to ethics regulations.
“When people come before the commission they wanted that to be an educational experience and not a penal experience. That’s the message that I got coming in,” said Bersin, hired in 2006.
“Stakeholders didn’t want from us the increased investigative presence,” he added.
Settlements up, fines down
This was the climate in which the commission launched its investigation of Kitzhaber last fall. The governor and his attorneys were well aware of the commission’s penchant for settling cases, and intended to use it to their advantage.
Publicly, Kitzhaber had promised that he and Hayes would fully cooperate. Yet a different strategy was laid out in private emails between Kitzhaber and Stephen Janik, one of his attorneys.
The plan was to play chicken with the commission.
“We will convey that we are willing to take this all the way and have a strong case for prevailing,” Kitzhaber wrote in an email leaked to Willamette Week. “But the end game is not actually to have the complaints dismissed but rather to negotiate a stipulated settlement agreement in which we might acknowledge some minor mistakes we may have made and have the matter resolved.”
Kitzhaber was right to expect a deal. Bersin wants his staff to settle every case by negotiating with accused public officials. That goal is among the six performance measures the commission reports to the Legislature.
Bersin has made good on that goal every year since 2008. Not one case of the 150 or so a year considered by the commission has gone beyond settlement to a court-like hearing.
Negotiations typically bring investigations to a halt — often before investigators have the chance to subpoena documents or question witnesses. That means the extent of unethical conduct isn’t fully explored.
In the settlements, the commission lays out what facts it does have and public officials admit to some or all of the violations.
These deals also prescribe the punishment – if any.
For example, when Culver planning commissioner Robert Page didn’t file his annual financial disclosures in 2009, he faced $2,240 in fines and late fees. He got off with a warning. When four members of the West Linn City Council violated the open meetings law in 2012, each faced a $1,000 fine. Instead, they got warnings.
The commission is imposing fewer large fines, its records show.
From 2001 through 2006, the ethics commission has fined an average of eight public officials a year more than $1,000. Since then, however, that average has dropped to three.
Bersin said bigger fines now are reserved for officials who willfully misuse their office.
“There are a lot of people trying to do well, but they just didn’t do it right,” Bersin said, noting volunteers fill many public roles.
“But take the person who uses a state card to fill their gas tank – they knew that was wrong,” he added. “Any reasonable person would know that was wrong.”
Yet even in instances of willful misconduct, the commission can go easy.
Such was the case with Jeff Lanz, a former Oregon State Police captain who took $2,900 in state gas for his personal vehicle over seven months. Lanz, who had earned $90,600, pleaded guilty to criminal charges, lost his job, spent three days in jail, and was ordered to repay the state.
The commission separately opened a case against Lanz for the same conduct, eventually striking a deal with him last year. He admitted ethics violations that could have cost him $36,000 in fines. He and the commission settled on a $100 fine.
Pat Hearn, ethics commission executive director for 16 years before leaving in 2006, said significant fines are the best way to keep public officials honest — and media coverage of the fines helps spread awareness.
Hearn recalled a public official who boasted he had been exonerated when the ethics commission found he violated the law but didn’t issue a fine.
“You didn’t get their attention very well,” he said, “unless there was some sort of a sanction.”
Changes miss mark
Gov. Kate Brown recognized the importance of such sanctions when she recently proposed cures for flaws she saw in the state’s ethics machinery.
She proposed doubling the maximum penalty to $10,000 for intentional ethics violations.
“I don’t anticipate this hammer will be used in many cases,” Brown said in written legislative testimony.
She also wants to shorten the preliminary stage the commission uses to consider whether to launch an investigation. She would cut that to 35 days. Currently, the commission can take 19 weeks. Faster action, she wrote, “delivers greater peace of mind for the public.”
Brown recommended an additional $500,000 over the next two years for staff and computer technology.
None of her proposals would change the commission’s preference to educate rather than punish.
Bersin said in an interview he wants to restrain the commission’s enforcement even more, investigating only what it considers “willful” violations.
— Nick Budnick and Laura Gunderson