Governor’s “First Lady” Claim is Legal Fiction
Thursday, October 16, 2014
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.
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
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.
Evergreen State College
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.
Alleged pot farm property
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.
Investigation by DOJ
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.
3E Contracts with Demos
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.
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.
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.
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.
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.
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."
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.
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.
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.
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."
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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