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Governor’s “First Lady” Claim is Legal Fiction

Thursday, October 16, 2014

 

A state ethics investigation into the actions of Cylvia Hayes will be complicated by the fact that her role as a public official and as “First Lady” of Oregon is nowhere to be found in Oregon State law.

After the state GOP filed an ethics complaint on Wednesday, Cylvia Hayes will be the focus of a state ethics investigation to determine if she, as First Lady, broke rules governing the behavior of a public official. The problem is, there’s no such thing as a “First Lady” under Oregon state law.

“There’s no such thing if you look it up in the statutes,” said Christopher Shortell, an Associate Professor of Political Science at PSU’s Mark O. Hatfield School of Government. 

Hayes, in concert with Governor John Kitzhaber, has repeatedly claimed that she, as the Governor's fiancée, is de facto First Lady of Oregon.  

But press reports last week unveiled that Hayes may have violated state public ethics regulations when she accepted consulting contracts with three companies - Demos, The Energy Foundation, and Resources Northwest.

“Our office has treated her as a public official,” said Rachel Wray, spokeswoman for the governor. Wray agrees role of "First Lady" has no basis in the reality of Oregon law.“The First Lady role is not articulated in statute; there's no formal definition to my knowledge. Regardless of whether the First Lady would be legally found to be a “public official” for purposes of the ethics statutes, our office has always treated her as such and put measures in place related to ethics rules that pertain to public officials.”

First Lady Fiction

Having a ceremonial title is one thing. But conferring the rights and responsibilities of a public official onto someone is another. 

State ethics law is clear that a public official must be "elected," "appointed," employed or an "agent" of the government.

Other than her role as head of the Governor’s Oregon Prosperity Initiative, Hayes has no other official role in the government and holds no other public office

According to a Government website, funded by taxpayers, Hayes is the self-proclaimed First Lady.

The site offers the following quote from Hayes: “It's an honor to serve as First Lady. In this role, I am working to help make Oregon an even better place to live by focusing on an issue with which I have personal experience: overcoming the systemic challenges of poverty. It is unacceptable that in our state – with its rich natural resources and human ingenuity – so many people are struggling to make ends meet. It is time to turn this around, maximize our potential, and make Oregon a more prosperous place to live and do business.”

The problem with the Governor’s claim, and the use of taxpayer resources to create a faux “First Lady” office, is that neither state law nor ethics regulations allow for such a claim.

The state ethical standards are clear. A "relative" is defined as:

    •    Spouse of a public official or candidate 
    •    Children of a public official or candidate 
    •    Children of the spouse of a public official or candidate 
    •    Siblings of a public official or candidate 
    •    Siblings of the spouse of a public official or candidate 
    •    Spouse of siblings of a public official or candidate 
    •    Spouse of siblings of the spouse of a public official or candidate 
    •    Parents of the of public official or candidate 
    •    Parents of the spouse of a public official or candidate 
    •    Person for whom the public official or candidate has a legal support obligation 
    •    Person benefiting from a public official when benefits are from the public official’s public employment 
    •    Person who provides benefits to a public official or candidate when benefits are from the person’s employment 

Clearly, nowhere in the state statute is girlfriend or first lady included in the definition.

Running The Clock Through the Election

On October 13, Kitzhaber asked the ethics commission to clarify if Hayes does in fact constitute a public official.

“Are you a public official because of who your significant other is? That’s a tough call,” said Jeff Bissonnette, a public interest and energy advocate who worked with Hayes when she co-chaired the state’s Renewable Energy Working Group.

Simply bestowing a title on someone might not satisfy the legal requirements of a political appointment. Furthermore, if Hayes and Kitzhaber had been married they would share property, legal liability and have other common entitlements of a legal union. That alone, could have given some justification to extending the Governor's role as public offical to a "First Lady."

“This is a particularly complex situation because they are not married,” Shortell said.

Under Oregon law and the ethics commission rules, the commission has 60 days to respond to Kitzhaber's request for a clarification of just how to define Cylvia Hayes. So whatever the answer may be in the eyes of the law, it could come well after the elections.

 

Related Slideshow: Timeline of Cylvia Hayes’ Life and Misdeeds

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Marriages

March 28, 1989

Hayes divorced Todd Hayes in the state of Washington 

Dec. 17, 1996

Hayes divorced Doug McCarthy

July 19, 1997

King County, Washington marriage records revealed Hayes married an 18-year-old Ethiopian immigrant, Abraham B. Abraham. There was no record of the couple living together and four years and three months later they filed for divorce, which was finalized in 2002. Hayes admitted to being paid $5,000 for the marriage, which she said she used to pay for school expenses and did not report in her taxes.

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Evergreen State College

1994-1997

Hayes transferred to Evergreen from Bellevue Community College to earn a bachelor's degree in environmental studies in 1994. There she played on the woman's soccer team and was awarded academic and athletic scholarships.  She stayed on at Evergreen to earn a master's degree in Environmental Studies in 1997. 

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Alleged pot farm property

1997-1998

Hayes and her then boyfriend bought property in Okanogan, Washington near the Canadian border. Hayes admitted the property was intended for marijuana growth, although she said the operation “never materialized” and that she was never financially involved. However, the person who took over the property said that Hayes and her boyfriend stopped making payments and that there was evidence of marijuana being grown there. She gave up her interest in the property in April 1998. 

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Bend

1998

Hayes moved from Washington to Bend, Oregon. Hayes has said she lived in a tent on Bureau of Land Management (BLM) land over the summer while she got established in the area and finished her thesis. 

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3EStrategies

1998

Hayes founded 3EStraegies in Bend, a clean economy consulting firm. The business was built from Earth Connections, a nonprofit organization Hayes created two years earlier. In 2009 she converted 3EStraegies into a for-profit company. 

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Run for office

2002

Hayes ran for the Oregon State Legislature as the House Democratic nominee. She lost to Rep. Ben Westlund from Bend. 

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Kitzhaber Divorce

2003

Governor John Kitzhaber divorced his second wife of eight years, Sharon Kitzhaber, after he left the governor’s office in 2003. The two had become engaged during Kitzhaber’s first governor campaign.

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Kitzhaber and Hayes

2009

The first media report that Kitzhaber had a new relationship with Hayes appeared in the Bend Bulletin.

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Kitzhaber Reelection

2010

Kitzhaber won a third non-consecutive term and took office as governor. He had held the title previously for two terms from 1995 to 2003. He told the press that Hayes would take on the responsibilities and roles of a first lady.

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Investigation by DOJ

August 2010

Hayes was the center of a criminal investigation by the Oregon Department of Justice surrounding a consulting contract she received from the Oregon Department of Energy. Although her firm was ranked last, it was still granted work. Hayes was never accused of any wrongdoing, but the investigation showed state officials had guided a $60,000 contract to her firm.

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Move into Mahonia Hall

December 2010

After Kitzhaber was reelected in 2010, he announced that while he'd be spending most of his time in his Portland home, when in Salem his girlfriend Cylvia Hayes would stay with him in the Governor's mansion, Mahonia Hall. 

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Work for the Governor

2011-present

Hayes was placed on a seven-member team by Kitzhaber to write a 10-year energy plan. Hayes also gave speeches as the first lady and policy adviser in the area of energy issues.

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3E Contracts with Demos

March 2013

Hayes signed a $20,611 consulting contract with Resource Media, a firm that had contacted Kitzhaber’s office the year before to promote a Pacific Coast climate and energy initiative. 

May 2013

Hayes signed a $40,000 contract with the nonprofit Energy Foundation, who she had worked with as part of her duties as a Kitzhaber adviser. Hayes had spoken at an Energy Foundation event in 2012 and emailed them in the start of 2013, mentioning funding for the company. 

June 2013

Hayes signed a $25,000 contract with Demos. Hayes spoke and moderated a Demos panel, but was introduced as Oregon’s first lady, rather than a paid consultant.

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Engagement

Aug 2014

Kitzhaber and Hayes announced their engagement. However, no wedding date was announced.

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Expose on Hayes

Oct. 8 2014

The Willamette Week published an expose on Hayes alleging that her role as a private consultant and her position as Oregon's "first lady" presented a conflict of interest and an ethics violation. 

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Confession

Oct. 9, 2014

In a press conference, Hayes admitted to an illegal green card marriage in 1997. She said that she told Governor Kitzhaber about the illegal marriage only a day before the news went public. 

Oct. 13, 2014

Hayes admitted to KOIN 6 NEWS that she had lived on a property in Okanogan, WA used for growing and selling marijuana.

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Investigation called for

Oct. 14, 2014

The Oregon GOP called for an investigation into both Cylvia Hayes and the governor over allegations of self-dealing outlined in the Willamette Week.

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The bank loan

Oct. 15, 2014

The Willamette Week wrote that the Governor’s office had helped extend a government loan for a former client of Hayes’ consulting business in Bend, Oregon. The owner of a golf course was given an extension on his loan from the Oregon Department of Energy after the Department was persuaded by Kitzhaber's staff. The owner wrote a thank-you note to Hayes, Kitzhaber’s chief of staff and his business advisor for their help with the situation. 

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Ethics Commission

Oct. 15, 2014

The GOP filed a complaint with the Oregon Government Ethics Commission against Kitzhaber, Hayes, and the governor's unpaid advisor Patricia McCaig. It claimed there was a “conflict of interest transactions, employment relationships, benefits from public contracts, usage of public buildings and staff for personal financial gain and business."

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Rep. Berger complaint

Oct. 16, 2014
State Representative Vicki Berger (R-Salem) filed a complaint against Hayes with the Oregon Government Ethics Commission. Berger said in her statement, “I am asking for a full investigation of the possible misuse of state resources by Ms. Hayes.” 

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Former boyfriend speaks

Oct. 21, 2014

Karl Topinka, Hayes' former boyfriend she owned the pot farm in Washington with, told the Daily Mail that Hayes couldn't be trusted. He also said the pot farm was all her idea and she had done the planning. Topinka said Hayes failed to tell him of her illegal marriage that had taken place shortly before. 

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Ethics document

Oct. 25, 2014

Governor Kitzhaber did not list Hayes in an ethics document consisting of lobbyists he had a relationship with, GoLocalPDX reported. In a section where he was supposed to disclose “any compensated lobbyist who was associated with a business with which you or a member or your household was associated during 2013,” Kitzhaber wrote “N/A” or not applicable.
 

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Open records complaint

Oct. 29, 2014

GoLocalPDX.com filed a complaint with the Attorney General of Oregon against the Governor’s office for failure to comply with the open records law. A request for information to determine if the Governor had received income from Hayes’ consulting contracts was ignored for over two weeks, prompting the official complaint. 

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Opponents demand records

Oct. 30, 2014

Republican governor candidate Dennis Richardson was joined by Democrat Ifeanyichukwu Diru, Kitzhaber’s primary opponent, in a press conference demanding the Governor release records relating to the scandal. 

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Kitzhaber leads polls

Oct. 31, 2014

Governor Kitzhaber led by 10 points over opponent Richardson in a recent poll released by KATU a few days before the 2014 election.

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Hayes Speaks Out

Nov. 6, 2014

Cylvia Hayes made her first public statement since her confession that she had been part of an illegal sham marriage. The statement which she made via her Facebook page reads: 

"I just want to thank all of you who have sent such support and encouragement over these past very challenging weeks. In the midst of the storm the positive incoming from friends, family and colleagues has been enormously helpful. Thank you for taking time to reach out."

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Federal Investigation

Cylvia Hayes could face federal fraud charges for her dual role as a private consultant and public official in the Governor’s office, a series of legal experts told GoLocalPDX. 

The findings of an Oregon Ethics Commission investigation will determine whether Hayes violated state ethics laws when she accepted contracts for her private consulting firm while working in the governor’s office under the title of “Oregon’s First Lady.”

On Jan. 9, Willamette Week reported Hayes was under federal investigation, raising the specter of federal charges. 

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Press Conference

Jan. 30, 2014

Governor John Kitzhaber held a press conference and responded to questions surrounding investigations, ethics violations and Cylvia Hayes. When asked if he would resign, he said “I was elected by the people of this state to do a job, and I intend to do it.”

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Plagiarism

Feb. 11, 2014

A GoLocalPDX investigation into the writings of Cylvia Hayes found portions of her Green Jobs Growth Plan: 2011-2019 report were plagiarized from a pre-existing state report.

 
 

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