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Government wrongdoers get a pass under Oregon's attorney-client privilege rule

Some of the greatest political figures in history got their start as lawyers. In fact, of all the professions, lawyers are glaringly dominant among the ranks of Founding Fathers and presidents, from our second President John Adams to President Barack Obama.

As government is a function of composing, establishing, revising, and interpreting and enforcing policy and law, it makes sense lawyers are prominent among all of its branches.

FILE PHOTO - Former Columbia RIver Fire and Rescue Fire Chief Jay Tappan And it also makes sense Columbia County boards of directors, councilors and commissioners typically have a lawyer in the room when considering new policy or rendering decisions that will effectuate the outcome of a dispute or claim. They’re on hand to help our locally elected officials navigate legalese and sidestep the many landmines set before them by an increasingly litigious society. Our gratitude toward the lawyers who help our local governments operate more effectively wanes, however, when those lawyers become backroom operatives for increased secrecy and diminished accountability. When our elected and appointed officials botch their jobs, either through inept management, belligerent operations or fiscal irresponsibility, the public is entitled to a full accounting of what happened, a detailed explanation of the scope of the problem — how long and how much — and should be given a clear measure of the consequences and change controls initiated by those left standing to protect against future blunders, malicious or otherwise.

But through the increasingly common invocation of attorney-client privilege, the public’s right to make an informed assessment of its government’s effectiveness — or, as is sometimes the case, its ineffectiveness — has been compromised. How can the public assess its elected and appointed officials when those very officials are in control of deep pools of public dollars used to hire high-priced law firms to insulate themselves from the very public they have sworn to serve?

In January, the Spotlight filed a petition with the Columbia County District Attorney’s Office for an opinion on the Columbia River Fire and Rescue’s denial to allow us to review an investigative report into allegations of misconduct by former Division Chief Ron Youngberg. Youngberg, who oversaw CRFR operations for more than two decades, was placed on paid administrative leave Jan. 11, and formally announced his retirement from the fire district effective Jan. 22, according to documents in the Spotlight’s possession. Per Oregon Public Records Law, a public agency such as the fire district is not required to release documents related to an internal investigation into the misconduct of a public employee if the investigation reaches a conclusion and, as a result of that investigation, a sanction is imposed.

If the investigation has not reached a conclusion and the employee quits — resigns, retires, etc. — amid the investigation, the records law clearly indicates any materials associated with that investigation are subject to disclosure. Further, the law allows for a public interest test. If the public interest test is met, even documents that might otherwise be withheld should legally be disclosed. But that is an increasingly rare occurrence. Even in those situations where the Oregon records law clearly allows for disclosure, attorneys for public agencies cite attorney-client privilege to trump all other arguments for the release of records. Barring the initiation of an expensive lawsuit, the general public and news agencies have few other options, other than a leak by an agency source, to receive those files.

In the CRFR case, an attorney from Tedesco Law Group who represents the CRFR firefighters’ union on Dec. 3 filed a complaint with an attorney at Bullard Law, the firm representing CRFR, regarding issues with Youngberg of “a serious nature” that “concern the safety of our members, and could possibly impact the liability of the District,” documents show.

The complaint was filed attorney to attorney, bypassing the fire district’s supervisor and board of directors. Bullard Law then directed the investigation into Youngberg by hiring David Hepp, of Hillsboro’s David Hepp Consulting and Investigations, to conduct an investigation into the allegations. Hepp returned a report on his findings, referenced as the “Hepp Report.” Former Fire Chief Jay Tappan and at least two board members read the report, which was concluded on Jan. 11, the same date Youngberg was placed on paid administrative leave.

Still, rather than considering the Hepp Report as a work product, Bullard Law argues it is an attorney-client privileged document and not subject to disclosure. CRFR — taxpayers living in the district — ultimately paid for the Hepp Report.

Tappan in documents submitted to the District Attorney’s Office argues that removal of Youngberg from duty officer status on Dec. 22 — well prior to the conclusion of the Hepp Report — and then placing him on paid administrative leave are disciplinary actions that exempt the Hepp Report from disclosure under Oregon Public Records Law.

We strongly disagree.

In fact, Tappan reported the investigation was still ongoing well after the Hepp Report had been concluded. Indeed, when the Spotlight first interviewed Tappan after Jan. 11, he told the Spotlight the report had not yet been finished or received, though documents received later would show he already had it in his possession. And, according to his Jan. 11 letter to Youngberg to place him on leave, Tappan writes, “At this point, the charges and underlying facts are still being developed.” The investigation was ongoing and continued until Youngberg announced his retirement on Jan. 22. By the Oregon Public Records Law, the document should be released. But under the catch-all argument of attorney-client privilege, it’s likely to never see the light of day.

For us the question is not so much about what is in the report as it relates to Youngberg, though no doubt his actions are also of interest. But more importantly, such documents typically reveal much about who knew what, and when, as well as breakdowns in policy, board oversight and management. That is critical information for an informed public. Despite the fact attorneys, such as those at Bullard Law, prefer to sweep allegations and, indeed, proof of wrongdoing under the carpet for their public agency client, we expect our elected officials to resist any such tampering of the public’s right to information about its government, a liberty of a free and open society that is in dire jeopardy.

In fact, just this week the Columbia River People’s Utility District denied the Spotlight review of complaints filed against Director Dave Baker, including a complaint filed by John Nguyen, the general manager, that Baker violated a board policy. The attorney for the PUD, Philip Griffin, of Scappoose’s Clarke Griffin LLC, claimed Nguyen’s complaint was an attorney-client privileged document.

Utter nonsense. But still, very difficult, timely and, possibly, expensive to fight. Unquestionably, how the investigation into Youngberg played out demonstrates misdirection by his supervisor, Tappan, as well as the fire board, and reinforces the public’s immediate call to action to press for the removal of attorney-client protections as they relate to internal investigations of poorly acting public officials. Simply engaging an attorney in any public process should not immunize that process from public scrutiny.

This is what is happening — has been happening, and appears will continue to happen barring a change in the interpretation of law — in Columbia County and Oregon.