Oregon Lawmakers Ordered To Comply With Subpoenas — But Will They?

Dec 5, 2018
Originally published on December 5, 2018 12:46 pm

The Oregon Legislature must comply with an order to turn over sensitive documents to state investigators by Wednesday, said a commissioner with the Oregon Court of Appeals.

That doesn’t necessarily mean Capitol officials are going to listen.

In the latest twist to an ongoing battle between the state’s most powerful lawmakers and the Oregon Bureau of Labor and Industries, it’s possible the Legislature might flout a judicial ruling in order to be found in contempt of court.

“That’s one of the things the Court of Appeals says can be done,” said Edwin Harnden, an attorney representing House Speaker Tina Kotek, D-Portland, Senate President Peter Courtney, D-Salem, and other lawmakers and Capitol officials.

Harnden said Wednesday morning the Legislature could also choose to comply with a Nov. 19 order from a Multnomah County judge, producing a wide array of records related to sexual harassment complaints at the Capitol for BOLI investigators. Legislators have taken pains to avoid handing over those documents to the labor bureau, arguing that would jeopardize the identities of people who’ve reported harassment issues over a period of years.

“I just don’t know at this point what the decision will be,” Harnden said. “It’s one I don’t think that anyone should have to make.”

The dispute began in August, when Oregon Labor Commissioner Brad Avakian filed a complaint against lawmakers and other officials. Avakian claimed that the Legislature had enabled a culture of sexual harassment at the Capitol, and had ignored or downplayed bad acting by former state Sen. Jeff Kruse, who resigned earlier this year.

Legislators have denied the claims, and pointed out they had already been working with a number of groups — including BOLI — to change state policies for dealing with harassment. But officials have also refused to produce documents and sit for interviews as demanded by subpoenas from BOLI investigators.

In November, they unsuccessfully argued in court that BOLI has no constitutional authority to police the Legislature, and were ordered to turn over documents by Dec. 5. Lawmakers appealed that decision last week, and initially succeeded in having the lower court’s ruling temporarily halted.

On Tuesday, though, Appellate Commissioner James Nass found that the Legislature didn’t have grounds for an appeal. To get their argument before the Court of Appeals, he found, Capitol officials would either have to be found in contempt of court for not complying with the subpoenas, or hand over documents and then appeal the matter.

Harnden said his clients would decide which option to pick Wednesday. Given their repeated arguments in court, though, it’s clear officials are keen on not releasing the records before putting the matter before the appeals court. In filings, they have argued that if they were forced to produce the documents “there would be no way to ‘put the genie back in the bottle,” insinuating BOLI could reveal the names of harassment victims (the agency has said that’s out of the question).

Being held in contempt carries its own risks. Avakian has in the past asked a judge to penalize officials more than $1 million for not complying with subpoenas, though BOLI later reduced that request. While Multnomah County Judge Christopher Marshall said he believes officials had valid reasons for not immediately obeying the subpoenas, he could require fines if they disobey his ruling.

Then again, lawmakers might also have another incentive for delaying release of documents. Avakian is retiring from office at the end of the year. His successor as labor commissioner, Val Hoyle, is a former Democratic House Majority Leader with strong connections to sitting legislators.

Hoyle has declined to comment on the specifics of the case.

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