In Unprecedented Internal Squabble, Oregon Officials Tap High-Priced Lawyers

Dec 6, 2018
Originally published on December 7, 2018 10:39 am

Before ruling in an ongoing legal dispute between state lawmakers and Oregon’s labor commissioner last month, Multnomah County Judge Christopher Marshall took a moment to compliment the attorneys involved.

“Obviously we have good lawyering all the way around on this,” Marshall said in court. “That’s a good thing.”

It’s also not coming cheap to Oregon taxpayers.

As the Oregon Bureau of Labor and Industries tussles with the state’s Legislature over an ongoing sexual harassment investigation, each side has retained high-priced private attorneys to fend off the other.

  

The Cost Of Success

BOLI has been paying a lawyer $525 an hour to press its right to pry sensitive records from state legislators and other Capitol officials. That paid off in Marshall’s courtroom on Nov. 19, when the judge ordered legislators and other Capitol officials to produce documents and sit down for interviews with investigators.

After lawmakers appealed that ruling, Nena Cook, the attorney representing BOLI, also convinced an appeals court commissioner they had no right to do so. Legislators have now said they'll turn over documents.

The costs of those successes add up quickly. For the first three months of its contract, BOLI paid more than $91,680 for the services of law firm Ater Wynne. That total doesn’t include work done in November or early December, when lawyers filed a flurry of court documents and squared off in court.

The Legislature, meanwhile, has been paying up to $350 an hour for its own private representation. Its contract with law firm Barran Liebman says officials won’t spend more than $100,000 on those services, but it’s not at all clear they'll stick to that budget. Records show the Legislature had racked up more than $73,000 in legal costs by Oct. 22 — when attorneys had only just started an extensive process of preparing records for potential release.

“It’s a huge public expense to prepare all these documents,” said Edwin Harnden, the Legislature’s lead attorney in the BOLI investigation. “I’m required as a part of my professional job to get the job done and to do it right.”

Why So High?

The rates demanded by private attorneys are far higher than what agencies would pay if they were represented by the Oregon Department of Justice, which typically handles court cases for state agencies. The department charges $182 an hour for the services of an assistant attorney general.

“We are generally represented by the Oregon Department of Justice with respect to legal advice regarding difficult or unique issues that arise in our daily operations, and litigation before state and federal courts,” Marcia Ohlemiller, a BOLI legal adviser, wrote in August. “Working with counsel other than DOJ is a unique circumstance.”

But the DOJ, for logistical reasons, declined to represent either party in the highly unusual dispute between BOLI and the Legislature. Instead, taxpayers are paying a premium so that two state agencies can do battle with each other.

BOLI's Claim

The dispute between BOLI and legislative officials was sparked by a complaint filed by Labor Commissioner Brad Avakian in August. Avakian claimed that ongoing sexual harassment issues had turned the Capitol into a hostile work environment, an accusation which initiated an investigation by the commissioner’s own agency.

Many of Avakian’s allegations have to do with misconduct by former state Sen. Jeff Kruse, a Roseburg Republican found to have subjected lawmakers, interns and other staff to unwelcome touching and inappropriate comments.

Kruse resigned earlier this year, following an investigation that substantiated allegations against him. But Avakian now says that lawmakers and others in the Capitol downplayed or ignored Kruse’s behavior well before they took steps to stop it. He also suggests that legislative lawyers misled harassment victims about their options for filing formal complaints.

The complaint formally names House Speaker Tina Kotek and Senate President Peter Courtney — both Democrats, like Avakian — along with the top lawyer and human resources head for the state’s Legislative Assembly.

Avakian’s complaint came as a surprise to Legislative leaders, who’d been working with BOLI to scrutinize the Capitol’s existing rules for dealing with sexual harassment. Nonetheless, officials initially pledged full cooperation with Avakian’s investigation.

That changed when BOLI issued subpoenas to Courtney, Kotek and a host of other Capitol officials. Lawmakers began insisting the investigation was overbroad and claimed that BOLI had no constitutional authority to police the Legislature.

That argument was shot down by Judge Marshall in a Nov. 19 court hearing.

“The court fully appreciates the constitutional arguments, but finds they’re without merit in this situation,” Marshall said at the time, ruling in BOLI’s favor.

The Legislature wasn’t finished there. It appealed Marshall’s decision to the Oregon Court of Appeals, which initially stalled the ruling, before finding that officials didn’t yet have a right to appeal the decision.

'The Legislature Will Comply'

Legislative officials announced Wednesday they would comply with the subpoenas. But Kotek and Courtney argue releasing the information will hurt the Legislature's efforts at curbing harassment. 

"The Legislature will comply with the recent court order,” Kotek wrote. “But I remain concerned that Tuesday’s ruling will undermine the Legislature’s ongoing work to maintain that confidentiality and have a chilling effect on reporting in the future.”

BOLI says it's taken measures to ensure the names of victims will never be made public. It obtained a protective order from one of its own administrative law judges, mandating that records from the investigation be destroyed when the inquiry was concluded. 

Though the Oregon DOJ would normally represent the Legislature or BOLI in court, it’s not uncommon for the agency to hire outside counsel of its own in cases which require specialized expertise, noted DOJ spokeswoman Kristina Edmunson.

In three recent cases where the department tapped such “special” assistant attorneys general, it agreed to pay top level rates of $625, $544 and $345 per hour, according to public records.

In such cases, though, the state routinely requests that its opponents pay attorneys fees if it prevails in court. In the dispute between BOLI and the Legislature, taxpayers are on the hook no matter who wins.

How high the price tag will run for the face-off between Avakian and the Legislature is unclear. BOLI’s agreement with law firm Ater Wynne doesn’t contain an upper limit for what the bureau will pay. The $100,000 limit on the Legislature’s contract with Barran Liebman could be amended in the future, according to Cameron Miles, a staff attorney with the state’s Office of Legislative Counsel.

The costs “will be significant,” said Harnden, the attorney for the Legislature. “That’s very unfortunate.”

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