Top official in Kate Brown administration launches criminal probe of Kitzhaber email leak
http://www.oregonlive.com/politics/index.ssf/2015/02/kate_brown_launches_criminal_p.html
The leak investigation was triggered by the Feb. 18 publication of the leaked emails by Willamette Week. The newspaper didn't cite the source of the material.
Among the emails was an exchange between Kitzhaber and his ethics lawyer, Stephen Janik, that confirmed the ex-governor's involvement in a strategy to blunt an ethics review of Hayes' conduct. The Oregonian/OregonLive earlier reported on that strategy, citing filings made with the Oregon Government Ethics Commission.
The significance of the strategy is that it predated Kitzhaber's statements at a Jan. 30 news conference that he and Hayes would cooperate fully with the ethics review.
Top official in Kate Brown administration launches criminal probe of Kitzhaber email leak
"This article has been updated with new information from state officials.
A top official in Gov. Kate Brown's administration has launched a criminal investigation searching for the person who leaked former Gov. John Kitzhaber's personal emails.
Meanwhile, two high-ranking state managers were placed on administrative leave on Friday pending a personnel investigation that is separate from the criminal one. One, Michael Rodgers, is the same manager who blocked a well-publicized effort by Kitzhaber's staff to delete copies of his personal emails stored in state archives.
Rodgers is the interim director of the state data center that warehouses state emails. Marshall Wells, the center's technical engineering and security manager, was also placed on leave. State officials wouldn't explain why the two are on leave and whether it concerns the leak, or their participation in the department's response to the leak.
Many sensitive state emails have leaked over the years, but none have sparked a known criminal probe. The leaker at worst likely could face a relatively minor criminal charge: second-degree official misconduct, a misdemeanor.
Michael Jordan, director of the state Department of Administrative Services, disclosed the investigation in an email to agency employees last Wednesday. He stated that he'd requested the Oregon State Police investigate, and to expect to see investigators on site.
Meanwhile, two high-ranking state managers were placed on administrative leave on Friday pending a personnel investigation that is separate from the criminal one. One, Michael Rodgers, is the same manager who blocked a well-publicized effort by Kitzhaber's staff to delete copies of his personal emails stored in state archives.
Rodgers is the interim director of the state data center that warehouses state emails. Marshall Wells, the center's technical engineering and security manager, was also placed on leave. State officials wouldn't explain why the two are on leave and whether it concerns the leak, or their participation in the department's response to the leak.
Many sensitive state emails have leaked over the years, but none have sparked a known criminal probe. The leaker at worst likely could face a relatively minor criminal charge: second-degree official misconduct, a misdemeanor.
Michael Jordan, director of the state Department of Administrative Services, disclosed the investigation in an email to agency employees last Wednesday. He stated that he'd requested the Oregon State Police investigate, and to expect to see investigators on site.
"The OSP investigation was initiated by Michael Jordan," said DAS spokesman Matt Shelby. He added that to the best of his knowledge, Brown did not direct Jordan to do so. Jordan called Oregon State Police Superintendent Richard Evans, Jr., who also reports to Brown.
Jordan is Brown's highest ranking administrator, reporting directly to her. Brown spokeswoman Kristen Grainger said Jordan informed Brown of the criminal investigation only after it was underway, but the governor does not question the decision.
Brown trusts Jordan's intent to "carry out the duties of his office" including "security and transparency," Grainger saidl
The leak investigation was triggered by the Feb. 18 publication of the leaked emails by Willamette Week. The newspaper didn't cite the source of the material.
Among the emails was an exchange between Kitzhaber and his ethics lawyer, Stephen Janik, that confirmed the ex-governor's involvement in a strategy to blunt an ethics review of Hayes' conduct. The Oregonian/OregonLive earlier reported on that strategy, citing filings made with the Oregon Government Ethics Commission.
The significance of the strategy is that it predated Kitzhaber's statements at a Jan. 30 news conference that he and Hayes would cooperate fully with the ethics review.
Jordan was one of Kitzhaber's closest allies in state government. Jordan and Cylvia Hayes, Kitzhaber's fiancée, shared an office for a time, and he worked closely with Hayes on some of her policy initiatives.
"This comes down to trust," Jordan wrote in his Feb. 18 email. "Trust in our ability to securely store sensitive information; trust in our process to determine what information is public; trust that we can work with agencies to strike the appropriate balance between security and transparency."
"This comes down to trust," Jordan wrote in his Feb. 18 email. "Trust in our ability to securely store sensitive information; trust in our process to determine what information is public; trust that we can work with agencies to strike the appropriate balance between security and transparency."
The state data center that is the focus of the investigation is part of Jordan's department. However, on Friday, Jordan transferred direct management of the center from his deputy director, Sarah Jo Chaplen, to Chief Information Officer Alex Pettit, an at-will appointee who reports directly to the governor.
Removing Chaplen, Rodgers and Wells from the administration of the data center in effect places the archive of state emails directly under Brown's control as the state responds to a wide-ranging federal subpoena about the activities of Kitzhaber and Hayes.
The FBI and the state Justice Department have launched separate but overlapping investigations into possible influence peddling involving Kitzhaber and Hayes.
On Feb. 5, a Kitzhaber staffer and friend, Jan Murdock, contacted the state data center to order the deletion from state archives of emails Kitzhaber sent and received from his personal account.
The effort to delete documents, coming as it did among allegations of potential criminal activity by Kitzhaber and Hayes, raised concerns among data center workers that potential evidence would be destroyed.
Rodgers backed up staff and did not allow the emails to be deleted. Subsequently, Kitzhaber's staff said the personal emails would be reviewed to determine which should be disclosed. Kitzhaber resigned before that review was completed.
The seriousness of the investigation will likely send a message to public servants who want to blow the whistle on misconduct, said Tung Yin, a criminal law expert at Lewis & Clark Law School, in an email.
"It wouldn't be surprising if this investigation turns out to have a chilling effect on future whistleblowers/leakers," he wrote.
The effort to delete documents, coming as it did among allegations of potential criminal activity by Kitzhaber and Hayes, raised concerns among data center workers that potential evidence would be destroyed.
Rodgers backed up staff and did not allow the emails to be deleted. Subsequently, Kitzhaber's staff said the personal emails would be reviewed to determine which should be disclosed. Kitzhaber resigned before that review was completed.
The seriousness of the investigation will likely send a message to public servants who want to blow the whistle on misconduct, said Tung Yin, a criminal law expert at Lewis & Clark Law School, in an email.
"It wouldn't be surprising if this investigation turns out to have a chilling effect on future whistleblowers/leakers," he wrote.
James Moore, a politics professor at Pacific University, said the leaker may have been a whistleblower whose primary motivation was to avoid improper destruction of public records. He called a criminal investigation "overkill" and said it conflicted with Brown's public statements embracing transparency.
"I think it raises questions about how open the state government wants to be," said Moore, who directs the Tom McCall Center for Policy Innovation. "You want to figure out what the leaks were and you want to try to figure out motives, but all that can be done in a non-criminal kind of way."
Grainger, the Brown spokeswoman, said the probe "in no way affects our intention to release as many records as we can, as soon as we can."
The scope of the state police investigation, and whether it focuses only on the state data center, is unclear. Copies of Kitzhaber's personal emails gathered by Jordan's department were shared with the then-governor's staff before they were leaked. It's also unclear whether others had access to his personal gmail account.
Kitzhaber's defense lawyer, Janet Hoffman, on Friday requested an independent criminal investigation into the leak, apparently not realizing a probe had already begun. She asked Attorney General Ellen Rosenblum to hire an independent investigator because of the AG's marriage to Willamette Week publisher Richard Meeker. Hoffman noted that some of the emails were attorney-client privileged and would never be subject to disclosure under the state's records law.
-- Nick Budnick and Laura Gunderson
nbudnick@oregonian.com lgunderson@oregonian.com
503-294-5083 503-221-8378
@nickbudnick @LGunderson
nbudnick@oregonian.com lgunderson@oregonian.com
503-294-5083 503-221-8378
@nickbudnick @LGunderson
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