Willamette Week Could Be Subject to State Police Investigation of Leaked Emails

Wednesday, February 25, 2015

Annie Ellison, GoLocalPDX Reporter

A selection of former governor John Kitzhaber’s personal emails that were leaked to alternative weekly Willamette Week (WW) by an Oregon state employee are the subject of a criminal investigation led by the Oregon State Police (OSP).

The emails, which the state’s Department of Administrative Services (DAS) says inadvertently wound up on the state’s server through a “daisy chain of email forwarding” formed the basis of a Feb. 18 report by veteran WW reporter Nigel Jaquiss.

That same day, DAS Chief Operating Officer Michael Jordan asked for a state police investigation into the apparent security breach in the department’s Enterprise Technology Services (ETS). Feb. 19, OSP investigators began data forensics and interviews with DAS staff, according to the department’s spokesman, Matt Shelby.

WW editorial staff, state police, and the paper’s long-time legal counsel are keeping quiet while it remains unclear whether OSP investigators have questioned WW on how Jaquiss obtained the emails.

“Of course they would, it’s their job,” said Tom Bivins, an ethicist and professor at the University of Oregon’s School of Journalism and Communication. “I don’t blame agencies for asking those questions, it’s their job to ask the questions, and it’s the journalist’s job to say ‘no.’”

Oregon’s media shield law protects journalists from disclosing their sources, even in the face of a criminal investigation. Statutes ORS 44.510-540 ensure both journalists and their sources are safe from compelled testimony.

“[Jaquiss] knows he doesn’t have to give up his sources,” said Bivins.

Personnel shuffle and email lockdown

In addition to the police investigation, two senior DAS staff, Marshall Wells and Michael Rodgers, are on paid administrative leave pending a human resources-led inquiry.

“The catalyst for the investigations is totally separate, but because both are ongoing, there may be some cross-over,” Shelby said.

Rodgers was most recently the interim administrator in charge of the state’s Enterprise Technology Services, which oversees the state’s data center.

After revelations that a state investigation was launched by Attorney General Ellen Rosenblum Feb. 6, a federal subpoena was issued Feb. 13, and emails were apparently leaked to WW sometime before Feb. 18, the DAS “took steps to secure and preserve Gov. Kitzhaber emails,” Shelby said.

Kitzhaber’s emails, from both personal and state accounts, are now in a digital vault.

“A very select number of people would have access to them,” Shelby said.

Prior to that, Kitzhaber’s cached emails were in the same archive as any other state employee’s emails, a safe but not air-tight environment. The same staffer who could have accessed an accidentally deleted email for a state employee could have accessed Kitzhaber’s emails on the server.

“Now they’re isolated and sequestered until all legal questions are sorted out,” Shelby said. The impetus behind Jordan asking OSP to investigate was the fact that those emails will likely be evidence in one of the two ongoing investigations into Kitzhaber, Shelby said.

The records are covered in a sweeping federal subpoena issued by the U.S. Department of Justice Feb. 13.

“We’re still in the process of negotiating with US attorneys on what we need to produce,” Shelby said. “Our key goal right now is to identify and preserve.”

Are the emails public record?

Toncon Corp. litigator Steve Wilker, one of a shrinking number of the city’s high profile lawyers not connected to the unfolding legal issues surrounding Kitzhaber’s resignation, said whether or not the emails are deemed public record will factor into the state police investigation.

Kitzhaber’s camp held that some of the emails that were sent from a private account and discussed matters unrelated to state business do not constitute public record.

“Even if it's put there by mistake, [Kitzhaber] turned it into a public record by storing it on a state server,” said Wilker.

Some of the emails could, however, be exempt from disclosure, he said.

Wilker clarified “it doesn’t answer the question of whether they were lawfully disclosed.”

Regardless of the status of the record, the person or persons who released the emails to WW may have violated an obligation to the government, or to the state by doing so without proper authorization, Wilker said.

Whistle-Blowing vs. Leaks

Bivins, the University of Oregon ethicist, makes the distinction between “leaks” and “whistle-blowing.”

In either case, when presented with confidential information, Bivins said a journalist must question the source’s motivation.

“If it seems self-serving, then it's definitely a leak. If it’s aimed at a greater good, then the chances are more in favor of whistle-blowing,” he explained.

Emails that leaked from the data center to WW were reportedly from the same set -- Shelby says three years’ worth -- of emails that a Kitzhaber staffer inquired about having removed from the state server.

According to Shelby, the state was aware that the emails, from a personal account of Kitzhaber’s, had been auto-forwarding to the state server since 2011. Still, the exclusive Feb. 18 WW report revealed a strategy between Ktizhaber and his lawyer, Stephen Janik, in preparation for the Oregon Ethics Commission review, now on hold, as well as Hayes’ plans to expand on her role in public office.

Bivins also argues the emails were public record, having been on the state server.

Silence on the record

“WW has no comment,” Jaquiss said in response to a query from GoLocalPDX about the state police investigation.

The same went for Managing Editor for News Brent Walth.

“No one at Willamette Week has any comment on reports of a state police investigation,” said Walth.

Counsel at Davis Wright Tremaine, the firm that has steadily represented Willamette Week in the past decade, did not comment.

The Oregon State Police did not respond to queries regarding the data breach investigation.

Related Slideshow: Slideshow: The Top 11 Political Scandals in Oregon History

GoLocalPDX lists some of the biggest and most shocking political scandals in Oregon history, from illegal sexual encounters to land fraud, over the last 100 years.

Prev Next

Neil Goldschmidt

2004

Former Oregon governor, Portland mayor and secretary of the U.S. Transportation Department admits that in the 1970s he had a sexual relationship with a 14-year-old girl. He said the “relationship” went on for 9 months. Goldschmidt was 35 and married at the time.

While Goldschmidt was not holding elective office at the time, he stepped down from his positions at the Oregon Board of Higher Education and Oregon Electric Utility Company. In 2000, he briefly reappeared on the public stage with a quixotic campaign to reconnect the North and South Park Blocks in downtown Portland. Goldschmidt retreated from public life. He was never charged with a crime.

Photo Credit: OrHi 102947 Courtesy Oregon Historical Society (image cropped)

Prev Next

Sam Adams

2005

Former city commissioner and then-mayor of Portland, Sam Adams admitted to having a sexual relationship with an 18-year-old male legislative intern after denying the charges and urging the boy to do the same. The two were together before Adams began campaigning for the office of mayor and before the young man was 18.

Adams eventually admitted to the relationship and agreed to cooperate with any investigation, but did not resign from office. The Department of Justice found no incriminating evidence in the investigation, so he was never charged. Adams chose not to run for re-election.

Prev Next

Bob Packwood

1992

US Republican Sen. Bob Packwood resigned from the Senate after 1995 when allegations of sexual harassment and abuse brought threats of expulsion. In a story in the Washington Post, 10 women claimed the senator had sexually abused and assaulted them.

Packwood’s diary, parts of which were turned over to the Senate Ethics Committee, allegedly documented his abusive behavior. It was later found out that he had removed some of the incriminating pages from the diary and allegedly made threats against other members of Congress. After resigning, Packwood spent time in an alcoholism clinic, blaming his actions on his drinking problem.

Photo Credit: [Public domain or Public domain], via Wikimedia Commons (image cropped)

Prev Next

Cover Oregon

2014

Oregon’s attempt to create a new health insurance marketplace was passed by the Oregon Legislative in 2011. Issues with a failing website that cost over $160 million of state funds caused the enrollment to switch to paper forms. Contractor Oracle sued Cover Oregon for breach of contract, claiming they were never paid for their software. A month later, Oregon sued Oracle Corporation for a breach of contract as well.

Carolyn Lawson, the former chief information officer for the Oregon Health Authority who received the brunt of the blame in the fiasco, sued Oregon for wrongful discharge and defamation. The lawsuits are still ongoing.

Photo Credit: iStock (image cropped)

Prev Next

Mark Hatfield

1980's

As the Washington Post Reported in Mark Hatfield's Obit:

In the 1980s, his wife accepted $55,000 in payments for real estate work from a business tycoon with a multibillion-dollar contract before Congress. Mr. Hatfield apologized for the appearance of wrongdoing and gave the money to charity.

Several years later, in 1992, he was formally rebuked by the Senate ethics committee for not disclosing more than $42,000 in gifts from friends and lobbyists — the result of a “careless” clerical error, he said at the time.

Photo Credit: Ground at en.wikipedia [Public domain], from Wikimedia Commons

Prev Next

Oregon Land Fraud

1905-1907

In 1870, the Oregon and California Railroad was granted 3 million acres on which to build a rail line from Portland to California. The excess land was to be sold to settlers in small portions, yet the president of the railroad decided to sell the land to timber companies for a greater profit. He hired surveyor Stephen A. Douglas Puter to gather people from saloons to register for land that would be transferred to Puter and sold to the highest bidder for timber harvest.

With more than 1,000 initial indictments issued in the case, some U.S. senators and representatives were charged. Of the four major politicians brought to trial, only two—Rep. John Hicklin Hall and Sen. John H. Mitchell—were found guilty for failing to investigate the case. Hall was later pardoned by President William Howard Taft and Mitchell died from a tooth-extraction complication while waiting for his appeal.

By John_Hicklin_Hall.png: Republican Party [Public domain], via Wikimedia Commons (image cropped)

Prev Next

David Wu

2011

The Oregon Democrat congressman from Portland, was asked to resign after a young woman alleged Wu forced her into an unwanted sexual encounter. An 18-year-old girl told the Oregonian she had an “aggressive” sexual encounter with Wu. Wu admitted to the encounter, but claimed it was consensual. He fought resigning, but finally gave in.

It was not the first allegation of its kind against Wu. In 2004, a 1976 incident involving the alleged rape of his former girlfriend was looked into. Despite the attention, Wu won the election that year. Wu continues to live in the Washington, D.C. area.

Photo credit: Official portrait

Prev Next

Jeff Cogen

2013

While chairman of the Multnomah County Board of Commissioners, Jeff Cogen was investigated for using taxpayer money to pay for hotel rooms and trips for an extramarital affair with a county Health Department policy director. He was also accused of frequently smoking marijuana and using cocaine while in office.

Cogen refused to speak to state investigators and ignored calls to resign until a few months after the incident. No evidence was found to charge him with any crimes. This year he worked with a petitioning firm that gathered signatures for legalized marijuana.

Photo Credit: public domain

Prev Next

Jefferson Smith

2012

The Willamette Week reported that Portland mayoral candidate Smith was cited for a 1993 for a misdemeanor assault on a women. The alleged assault took place when Smith was enrolled at the University of Oregon. Witnesses said that the victim woke up with Smith on top of her, and started hitting him. Smith claimed that "it was the worst night of his life" and that he tried to take responsibility for it immediately.

Smith said he agreed to 20 hours of community service, apologized to the woman, and paid her medical bills. He said the charge was dropped in exchange.

Photo credit: public domain

Prev Next

Multnomah Bridge Scandal

1924

In 1924 three county commissioners were recalled for "graft, bribery, and malfeasance" after awarding a construction contract for the repair of the Burnside Bridge and the construction of the Sellwood and Ross Island bridges. They voted to select a bid offered as a joint effort by three local construction firms, who would each build a new bridge. It was $500,000 more than the only other bid that was entered in a rushed, 24-hour window.

The public started a recall petition for the commissioners and the Oregon State Attorney started an investigation, charging the commissioners with soliciting, accepting bribes, and malfeasance for not picking the lowest bid. Although no charges stuck, the commissioners were kicked out of office by a large majority of voters.

By Steve Morgan (Own work), via cc (image cropped)

Prev Next

Terry Schrunk (Bonus)

1957

Schrunk was the mayor of Portland for 16 years, 1957-1973. His first year as mayor, allegations of bribery and perjury charges landed him before a special Senate committe.

Schrunk was accused of raiding the rowdy 8212 club with fellow deputies in 1955 when he was a Multnomah County Sheriff, and accepting a $500 bribe from the manager to leave and look the other way.

Schrunk denied having taken any bribe, but did admit that his deputies had raided the 8212 Club, seen illegal activity, and left without further action. Schrunk was tried on bribery and perjury charges and found not guilty.

Photo Credit: Oreg. Hist. Soc. Research Lib., bb005787 (image cropped)