Oregon governor Kate Brown is caught up in yet another scandal, as the state’s public records advocate, Ginger McCall, has resigned, citing “abuse of authority” and is accusing Brown of coercing her into covering up public records.
More alarming, Governor Brown’s attorney who pressured McCall was just appointed to a judge seat on the state’s court of appeals.
Ginger McCall, the state’s first-ever public records advocate, resigned in a letter that she sent today to the Public Records Advisory Council, which she chairs and which supports her work.
“Though I will no longer be serving in this role, I believe deeply in the importance of the Office of the Public Records Advocate,” McCall wrote.
“This Office serves an essential role in connecting the public with the government. In order to do this, though, the Office must be independent, operating to serve the public and not partisan political interests. I hope that the Council will dedicate itself to protecting that independence and select a candidate who is equally devoted to that goal.”
Soon after, they updated the story:
In a separate letter to Brown, McCall was more forthcoming about the reason for her surprise resignation, highlighting her disagreements with Brown’s general counsel, Misha Isaak.
Here is the key section of that letter, which WW obtained under a public records request:
I do not think that the staff of the Governor’s Office and I can reconcile our visions regarding the role of the Public Records Advocate. When I accepted this job, it was with the understanding that the Office of the Public Records Advocate was to operate with a high degree of independence and had a mandate to serve the public interest. That is an understanding that I believe the public, the Legislature, and the Public Records Advisory Council share.
Meetings with the Governor’s General Counsel and staff have made it clear, however, that the Governor’s staff do not share that view. I have received meaningful pressure from the Governor’s General Counsel to represent the Governor’s Office’s interests on the Public Records Advisory Council, even when those interests conflict with the will of the Council and the mandate of the Office of the Public Records Advocate. I have not only been pressured in this direction but I have been told that I should represent these interests while not telling anyone that I am doing so. I believe these actions constituted an abuse of authority on the part of the General Counsel, and are counter to the transparency and accountability mission that I was hired to advance.
While I have always endeavored to work collaboratively with all offices of government, I believe strongly that independence is both essential to the effectiveness of the Office of the Public Records Advocate and enshrined in the law. However, if I am incorrect regarding the legal basis of the Advocate’s independence, then the Advocate’s responsibility to represent the interests of the Governor’s office should be acknowledged before the public and the Council. If the Advocate were to represent the interests of an elected official while allowing the Council and the public to believe that she is acting independently, that would be both unethical and particularly inappropriate for an office that was founded to promote transparency.
Her assignment was to help make state and local government more transparent by mediating disputes over public records; providing training and education about public records and leading the governor’s newly-formed Public Records Advisory Council.
Oregon’s Public Records Law says that, with some exceptions, all documents in the government’s possession belong to Oregonians and are subject to inspection by the public, including the media.
When legislators passed the law in 1973, it was considered a model for other states but, since then, legislators have created more than 550 exemptions, each of them placing a new barrier between Oregonians and the information that belongs to them.
A memo from McCall has been made public following a meeting she had with the governor’s attorneys, Misha Isaak and Emily Matasarof, where they tried convince McCall that she technically worked for the governor’s office and was not an independent advocate:
This is a record of my January 15, 2019 meeting with Misha Isaak and Emily Matasarof Governor Kate Brown’s office. I am writing this the day after the meeting with Misha and Emily.
This meeting was called at my request after a previous meeting in which Misha and Emily in which Misha disagreed with several of the points made in the Public Records Advisory Council’s November 30, 2018 report. Todd Albert, Deputy Public Records Advocate, was also present at that prior meeting, which took place on January 7, 2019. During the January 7, 2019 meeting, Misha instructed me and Todd that if we planned to file future reports, we should send them to the Governor’s office prior to filing so that the Governor’s office could comment. It was left ambiguous whether these comments would be binding or simply advisory.
In a followup conversation with Emily Matasar, I asked what the timeline was for sending reports to the Governor’s office and attempted to clarify whether the Office of the Public Records Advocate or the Public Records Advisory Council were required to receive authorization from the Governor’s office before filing reports or publicly releasing them. Emily indicated that the Governor’s office wanted the opportunity tocomment on any reports but was uncertain of whether or not the Public Records Advocate or Council needed authorization. She suggested that we set up a meeting with Misha. That meeting was set for January 15, 2019.
The January 15, 2019 meeting began with Misha stating that he had reviewed ORS 192 and his interpretation of it is that the Public Records Advocate works for the Governor’s Office. He recalled that in conversations with DAS during the spring of 2018, DAS had stated that it did not think it was appropriate for DAS to supervise the Advocate. The Governor’s Office then assumed supervisory responsibilities. None of this had previously been conveyed to me. In prior conversations with multiple parties, including the Governor’s office, it had been stated that the Advocate was intended to be independent. When I had asked in Spring 2018 who I would report to, the Governor’s office replied that I did not report to them. When I raised that point in this meeting, Misha stated that the legislature had put some measures in the Advocate bill that would create some independence, he was of the opinion that that independence was only vis-à-vis the daily operations of the Office (it’s mediation and training), but that for political matters and matters of policy, the Advocate worked for the Governor and the Governor’s office is free to intercede. Misha conveyed that it is his interpretation that the core functions of the office are mediation and training, when I mentioned the Advocate’s position as Chair of the Council, he stated that the Council was only meant to be a temporary body, and that chairing it was not core to the Advocate’s duties.
When I raised the point that the Advocate Office is an ombuds office, Emily stated emphatically that it is not an ombuds office, it is an Advocate office, and there is a difference.
Misha then conveyed that in his interpretation he is the supervisor of the Advocate and that the weekly meetings I had had with Emily were, in fact, supervisory check-ins. This had never been conveyed to me before. It was my understanding that those meetings were a friendly effort by the Governor’s office to keep up with the work of the Advocate and the Council, to offer advice and feedback, and to exchange information.
The meeting then turned to matters related to the legislative session. I had previously asked for advice regarding how to manage reporter inquires on pending legislation. I had raised this question because it had been conveyed to me in severalDAS trainings that agency officials are not to comment on pending legislation. Mishaconveyed that this was the case and that I was to reply “I have not taken a position on that legislation.” I accepted this without dispute.
Misha then directed the discussion to another issue that he disagreed with, the Council’s choice to exclude local entities from its proposed bill regarding annual reporting requirements – this was also discussed in the context of another bill submitted by an outside group which had stuck a similar compromise. Misha conveyed to me that by doing that the Council (and the third parties pushing the other bill) had put the Governor in an awkward position of having to potentially oppose bills herself instead of relying on stakeholders and lobbyists for cities, counties, and special districts to oppose the bills. When I stated that I did not have control over the proposals that the Council agrees to and that this was a compromise that had allowed a bill to reach consensus agreement, he stated that I should be considering the effect this has on the Governor’s office. I pointed out that there were other representatives of state government on the Council who could have objected and he said that there were reasons several of them would not objectand that DAS’ representative should not have to shoulder the burden of objecting. He implied that it was my job to control what proposals were put forth to the Counciland, ultimately, what proposals were agreed upon by the Council and, in doing that,I should be operating with the Governor’s office agenda in mind. I pointed out that limiting the provisions to state agencies made it more likely that they would gain consensus, especially in light of the fact that there are several lobbyists who represent localities on the Council. He also stated that in the future I should not prioritize creating consensus policy proposals over the political considerations of theGovernor’s office. He stated that in the future I should keep the Governor’s office in the loop regarding Council proposals (note: Emily had been present at most of the Council meetings, which are public meetings, available for call-in participation and afterward for streaming online). I stated my discomfort with being put in the position of advocating for an agenda which I was not free to disclose or discuss with the Council. This objection was not really discussed.
In the spirit of cooperation, I then asked if they had suggestions for what the Councilshould focus on in the coming year. They suggested a meeting with the Governor to discuss her ideas regarding policy priorities.
Toward the end of the meeting, Misha conveyed to me that they were impressed with the fact that I had been able to set up the office, conduct so many trainings, and give assistance to so many individuals. However, he said that I should be less ambitious, not move so fast, and recognize that I do not know about the politics or nuance of Oregon. Thus, I should “listen” and not attempt to propose reforms about things I did not fully understand. I should, instead, rely on the Governor’s office to make decisions about these things. This part of the meeting felt both demeaning and condescending. Nowhere in this discussion was an acknowledgement that I am a professional, with a decade of specialized experience in politics, reform, public records, advocacy and government. It was both disrespectful and unnecessarily hostile. Despite the offensiveness of the situation, I listened patiently and cordially
The meeting concluded with an uncomfortable statement by Misha that he is concerned that I will leave the meeting and call Nick Budnick [a reporter] and tell him that the Governor’s office is trying to censor me. This conveyed to me that I was expected to keep this meeting, including the fact that the Governor’s office interpreted ORS 192 to mean that I report to them, a secret. This expectation of secrecy made me feel uncomfortable. It felt both unethical and dishonest.
Scarier yet, this same attorney who was pressuring McCall and covering up for Kate Brown has just been appointed by Kate Brown to a vacant seat on the court of appeals. Willamette Week reports further:
Gov. Kate Brown today appointed her general counsel, Misha Isaak, to a vacant position on the Oregon Court of Appeals.
Isaak, 37, will become the third Brown staffer to move directly from her office to the bench in the past couple of years. His appointment is effective Nov. 1.
In July 2017, Brown appointed Isaak’s predecessor, Ben Souede, to the Multnomah County Circuit Court bench and earlier this year, Brown appointed her public safety advisor, Heidi Moawad, to the same court.
Isaak will replace retiring Justice Erika Hadlock on 13-member Court of Appeals. His salary will be $150,980.
The pending appointment caused some grumbling in the bar because of Isaak’s relative youth and what some people see as his limited legal experience—and the fact that as Brown’s general counsel, part of his job is to oversee the appointment of judges. (His candidacy for the position was vetted by his deputy, Dustin Buehler, and by a committee of four lawyers and senior judges. There were three other finalists for the position.)
Isaak has recently been a player in the chaos around Senate Bill 1013, which was supposed to narrow the scope of Oregon’s death penalty but was drafted in such a confusing manner that Brown has now proposed a special legislative session to rewrite the bill. One of Isaak’s tasks is to review all legislation before Brown signs it. In response to a question from WW this week about how much responsibility her office—i.e. Isaak—bore for not catching the mistake, Brown declined to blame him, noting numerous lawyers and lawmakers worked on the bill.
“Look,” Brown said Aug. 28. “There were a lot of people involved in this legislation and I think we all share some responsibility.”
Most of the people who expressed concerns about Isaak’s appointment declined to speak for the record for fear of displeasing Brown or Isaak but Clackamas County District Attorney John Foote summarized his thoughts on the appointment.
“For the long term health of our justice system, judicial appointments have to be removed from the political process,” Foote says. “Unfortunately, that is not true right now.”
At this rate, Kate Brown is setting herself to be Hillary’s successor.