Jursdiction, Nepotism, Retaliation, and Independence

Yesterday, Oregon's Statesman Journal reported an interesting case that involves a number of important government ethics issues.

The state's Department of Corrections (DOC) deputy director allegedly used his position to influence an Oregon Corrections Enterprises (OCE) administrator into hiring his son and later giving him a higher salary and increased moving expenses.

Another OCE administrator reported these allegations to the state's Department of Justice (DOJ), which found no criminal wrongdoing. One wonders why the DOJ didn't turn the matter over to the state's ethics commission? After all, why would use of one's position to help one's son (prohibited by an ethics provision) be a crime?

Fortunately, the state EC can initiate its own investigations, so it is now investigating the matter. But this is not a typical nepotism situation, since the son was given a job not with the father's agency, but with a different, although related one.

A Good Nepotism Provision
Also fortunately, the Oregon nepotism provision goes beyond the ordinary nepotism provision by applying its requirement of non-participation to situations where a relative's position would be with a "public body ... over which the public official exercises jurisdiction or control." ORS §244.177(b)

But the relationship between the DOC and the OCE is not clearly one of "jurisdiction" or "control." In fact, the DOJ investigation report expressed concern about the relationship between the agencies. The OCE is, according to the article, "an independent agency that employs Oregon’s prison inmates."

Retaliation
One thing the article makes clear about the relationship is that the head of the DOC can fire an OCE administrator. Sadly, this is what happened to the whistleblower who filed the complaint with the DOJ. Of course, the head of the DOC said the firing had nothing to do with the complaint.

But possible retaliation didn't stop there. According to the article, the DOC deputy director whose son was given a job with the OCE filed civil charges against the State of Oregon, the DOJ, the OCE human resources manager, and two former OCE administrators, most likely including the whistleblower. The allegations included the making of false and defamatory statements in interviews with the DOJ.

That certainly puts a chill on the ethics commission's investigation.

What Can Be Done
Of course, the whistleblower has also sued the DOC, alleging wrongful discharge, discrimination, and retaliation for whistleblowing.

And all about a job for somebody's son. They say that nepotism is a minor offense. Maybe state officials should be allowed to help get their children jobs with the state. Or maybe the state could use this occasion to take another look at a basic misuse of office and how it is being handled.

First of all, the DOJ should be required to quickly hand nepotism complaints over to the ethics commission. Second, it should be a serious ethics offense to fire someone who has recently filed an ethics complaint, even if it was filed with the wrong agency. Third, defamation charges against those who are interviewed as part of an ethics investigation should be prohibited.

Any charges a respondent wants to make against a complainant or witness in an ethics proceeding should be required to be made part of the ethics proceeding itself. There is no reason to have two investigations into the same conflict situation. The ethics commission's findings related to these charges can be taken into account in determining whether there was a violation (or whether to dismiss the complaint before such a determination), and in determining the sanctions against the respondent, if the respondent is found to be in violation. Findings relating to a respondent's charges can also be considered in the negotiation of a settlement.

The head of the DOC should also be brought into the proceeding, if the whistleblower protection provision provides for this. If not, the provision should be amended to allow this. On the one hand, his offense be more serious than the respondent's. On the other hand, it might turn out that he has evidence that the whistleblower did in fact make a false accusation.

Whatever the facts are, they all relate to the same situation and should be dealt with in one investigation by the agency that has jurisdiction over the nepotism prohibition and the whistleblower protection provision.

Independent Agencies
In addition, this would be a good time to consider whether there is any reason for the OCE to be an independent agency if the DOC director can hire and fire its administrators, and everything it does relates to individuals under the DOC's jurisdiction.

It's not the least bit surprising that, according to the article, a recent DOC internal audit showed several conflicts of interest in OCE contracts. Small independent agencies generally do not have the supervision, procedures, and transparency that larger agencies have. If there is not an important reason for its independence, it should be brought into the DOC.

Robert Wechsler
Director of Research-Retired, City Ethics

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