State ethics panel resumes probe of Kitzhaber, Hayes
Former Gov. John Kitzhaber claimed vindication with the recent news that federal prosecutors won't charge him or his partner, Cylvia Hayes, with a crime.
But the Oregon Government Ethics Commission has yet to weigh in as to whether the couple violated a different set of laws, those prohibiting public officials from profiting off their positions.
Now that the federal criminal case is over, the state ethics watchdog has resumed its review that had been put on hold. The commission first opened its case in October 2014, after news broke that Hayes had been receiving funds from outside groups hoping to influence some of the same state policies she was working on as an informal energy adviser to the governor. Then the ethics probe was put on hold after a joint FBI-criminal case became public four months later.
Here are five things to keep in mind as the ethics review proceeds:
1) Ethics law is a different beast from criminal law.
Under Oregon criminal law, cases must be proven beyond a reasonable doubt. Under federal laws on public corruption, a recent U.S. Supreme Court decision sets the bar even higher, requiring explicit proof, according to Lewis & Clark Law School Professor Tung Yin, who has followed the Kitzhaber case closely.
Under Oregon ethics law, however, the appointed members of the Ethics Commission don't need overwhelming certainty to conclude public officials improperly benefited from their government job, failed to disclose conflicts of interest, or used public resources for private benefit — the main focus of the law. All it takes is a vote of the commission's nine members, who are appointed by legislative leadership and the governor.
Setting up the commission was overwhelmingly approved by voters in 1974 to keep Oregon's government clean.
2) There is no shortage of evidence in this case.
A slew of media coverage and public records requests followed a Willamette Week cover story that detailed possible violations of ethics law in how Hayes worked for Kitzhaber on energy policies while accepting payments from outside groups hoping to influence some of those policies.
Hayes had been an environmental consultant before Kitzhaber's election. But in the reams of documents and coverage resulting from the controversy around Hayes, there's ample evidence that her relationship with the governor in some ways helped her win contracts and build business relationships.
Soon after Kitzhaber's election, a Wisconsin nonprofit was part of an effort, which latter fizzled, intended to give Hayes a salary leading a policy collaboration of western states.
Her position "was clearly a significant part of the reason" to support the collaboration headed by Hayes in 2011, Sam Munger, a manager of the nonprofit Center On Wisconsin Strategies, told the Oregonian in 2014. "There's no question that being first lady opens doors and gets people to answer your calls that they might not otherwise."
In 2013, an internal report by Resource Media, a group that helped connect Hayes to grants, noted that her "title of First Lady opens doors," though she should not speak on behalf of environmental issues for which she was paid while representing the governor.
"... Cylvia's highest value is in using her clout to open up doors and push decision makers to press ahead on ... solutions," said the report, obtained by The Oregonian.
Documents also showed Hayes used state employees to schedule her private business meetings and arrange flights. According to the revelations, some of the speeches she gave, ostensibly as first lady, actually were paid appearances under a $118,000 fellowship funded by energy groups.
Kitzhaber and Hayes have denied wrongdoing, but their lawyers did not respond to requests for comment on the ethics review.
3) This is not Kitzhaber's first ethics rodeo.
Twice before Kitzhaber was probed by the ethics commission. Both times, he was not fined.
In 1994, investigators concluded he had commited ethics violations for using his office phone as a state senator to schedule paid health care speeches that netted him more than $90,000 over the course of three years. Kitzhaber's lawyers agreed to settle the case for $2,000. But the commission instead voted to drop the case.
In 1997, Ethics Commission staff determined he had improperly used his position to take the controls of a state-owned plane in order to count hours toward renewing his pilot's certification. Once again, the Ethics Commission overruled staff and dismissed the case.
4) It's all about the calendar.
The agency opened its preliminary review of Kitzhaber on Oct. 16, 2014. When the agency put things on hold, it had a couple of weeks left to complete the initial review.
While the next commission meeting is not until July, it could convene a special meeting by telephone to vote on whether to launch a full investigation or to settle or drop the case.
5) A settlement is likely.
The Ethics Commission until 2007 was focused on enforcing state ethics laws with penalities. But it now focuses on education and training, according to its own documents.
The comission also has the written goal of settling every single ethics case before it goes to a hearing. For years it has done just that, a practice that lawyers can exploit.
On December 22, 2014, Kitzhaber sent his ethics lawyer an email that framed the resulting strategy as almost a game of chicken, in which the lawyers talk tough in order to secure a small fine.
"We will convey that we are willing to take this all the way and have a strong case for prevailing," Kitzhaber wrote in that email. "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 at the March meeting."