PORTLAND, Ore. — The Oregon Government Ethics Commission recently deadlocked in a vote on whether to investigate Governor Tina Kotek for a conflict of interest allegation related to her wife, Aimee Kotek-Wilson. Despite the tie, that vote put to bed further investigation into the ethics complaints.
Earlier this year, three top staffers in Kotek's office abruptly resigned, later followed by other senior officials. It soon became clear that their departure had something to do with the role that Kotek's spouse was being given in the administration.
After the news started to break, Kotek publicly said that she was moving to create an "Office of the First Spouse" in order to clear up some of the ambiguity in Oregon law about what a governor's spouse can or should do. She later dropped the plan, suggesting that she was responding to criticism that it garnered — although much of the criticism involved actions that occurred well before any such plan was outlined.
In the meantime, some unknown parties filed ethics complaints claiming that Kotek violated state law by taking actions to include her wife in the administration, assigning state police to protect her during certain public functions and assigning other staff to assist her.
In Oregon, Kotek's actions occupy a fraught context. In 2015, then-Governor John Kitzhaber resigned in disgrace after allegations that his fiancé violated ethics laws. Sylvia Hayes paid a $44,000 fine to settle allegations that she used the governor's office for personal gain, serving as an unpaid advisor to Kitzhaber on environmental issues while simultaneously trying to win private consulting contracts with companies wanting to influence state policy.
As a number of experts have pointed out, the two cases — Kotek's and Kitzhaber's — are not identical. Sylvia Hayes was essentially accused of influence peddling for financial gain, while Aimee Kotek Wilson was, at most, accused of benefiting from nepotism and exerting influence where it wasn't wanted. In Kotek's case, the issue seems to have troubled senior staffers enough to provoke a mass exodus, and the memory of Kitzhaber's scandal inevitably provides the backdrop.
Debating the merits
Susan Myers, executive director of the Oregon Government Ethics Commission, said she looked at documents and press reports about the resignations from Kotek's office, but decided not to interview the staffers directly. Regardless, she decided that the complaints had no merit, because Aimee Kotek-Wilson did not receive any financial benefit — a key distinction from the Kitzhaber case.
But other members of the ethics commission were not pleased with that decision.
"I appreciate your comment, director, about having reviewed the social media transcripts, especially in relation to the three governor's office staff persons the media has said have left the office," said Dave Fiskum, vice chair of the commission. "My question is, did you talk to those individuals as part of this review?"
"I did not," Myers replied. "Had I seen the information in those social media or email posts to indicate that they had anything to say that related to potential violations, anything about money or financial interests, I would have. But it did not appear, from what I saw, that what they were talking about, are concerned about, related at all to what our statutes required."
The Oregon Government Ethics Commission has nine members. While they are all appointed by the governor, most are suggested by lawmakers in the legislature; four by Democrats and four by Republicans. The governor can appoint the final member.
The body is intended to be apolitical, but it's made up of political appointments with the idea of it balancing out.
Richard Burke, a commissioner nominated by House Republicans, wanted to see more investigation into the complaints against Kotek.
"I think all of us know from having been involved in politics that when you are writing anything, especially something that could be in the public record, you're going to be very careful about how you word things. You're not going to want to burn bridges necessarily. You're going to, I mean, there are a lot of issues that are involved with writing an email," Burke said. "So I'm actually a little bit surprised that you didn't go through the additional step of interviewing those people. It may well be that it is exactly as you say. It may well be that they were hedging based on what they're putting in the written record. But I'm curious as to why you didn't interview them given those dynamics."
Myers insisted that the most important question was whether Aimee Kotek-Wilson was financially benefiting from her role in the administration. Since there was no evidence that she was, Myers concluded that there was no need to go further — although she conceded that she would conduct those interviews if the commission decided to move forward with the investigation.
Burke said that it was important to remember that the public is watching.
"You know there are other issues here. You know there's the use of office, whether or not the office was appropriately used as suggested, you know, by the attorney who provided us with the response," Burke said. "And I think that you know the state is watching us. Everybody is watching us very carefully after the John Kitzhaber, Sylvia Hayes situation.
"I think it is very important that we be diligent in making sure that what is asserted in your report is actually correct, that the resources provided to the First Spouse, if I'm using that term correctly, were appropriate and the usage of those resources were appropriate and we should determine that, I think, on more than just the word of the attorney responding in this case."
RELATED: Ethics questions raised over Oregon Secretary of State’s side job as cannabis industry consultant
The attorney in question was Derek Johnson, representing the governor. He used to be a member of the ethics commission himself.
"I share the same concerns that the commissioners do about the Oregon Government Ethics Commission being viewed as a political tool or being used as a political tool," Johnson said. "Its role in holding public officials accountable is important, but it's just as important to dismiss meritless or claims that are based on no evidence — and that's what you have here, as the executive director's very thorough and complete report sets forth. There is no evidence of a violation of the Oregon government ethics and statutes. That's what is before you now.
"Commissioner Burke, I appreciate that you're concerned about what is appropriate and what is not appropriate in the governor's office is something that we should all be concerned about. However, what is appropriate is different than what is legal or allowed under the ethics statutes. Appropriateness falls under what we would consider a political concern, and the political concerns are not the purview of the Oregon Government Ethics Commission."
Where's the violation?
A debate over the matter lasted an hour, with the Republican-nominated commission chair, Shawn Lindsay, eventually making clear that he wanted to see further investigation.
"The gaping hole that I see here is that we only have the available information, which is material. And we have not independently verified some of these facts or investigated those facts. And thus, because of that, I do think that there is a substantial objective basis, based on those reports, to proceed forward with the investigation," Lindsay said. "I don't think that we should treat people differently. I've lost count, candidly, of the times that we've had respondents here at our office in tears, and we've told them, 'We're going to proceed forward with the investigation to independently verify some facts. And more than likely it will be dismissed later, you'll be vindicated. But we need to iron out these facts to do our job.'"
But not everyone was in agreement. Shenoa Payne, an attorney nominated to the commission by Democrats, concluded that there was no need for further investigation for one simple reason:
"The allegations raised here, even if substantiated, for me still would not lead to a violation. There have been, as I understand, no allegations that the first spouse has an outside job, that the first spouse has an outside contract that would be used in some sort of financial way," Payne said. "So, to me, interviewing those witnesses are not going to substantiate some sort of allegation that is going to change this landscape. To me, the allegations are not such that it would change anything in the report that we have before us. Those are the sort of facts that, for me, would change something. Right now what we have is we have a volunteer, we have an unpaid spouse, and I don't believe that there are any allegations otherwise such that it would change anything before us."
Channa Newell, another Democratic nominee, echoed that sentiment.
"As to the interviews of the three folks and additional interviews of them, again, what I heard from Commissioner Payne and from Executive Director Meyers, is that even if they confirmed everything in the allegation, it still wouldn't be a violation," Newell said. "And so are we being efficient with our time? Are we being efficient with our use here? Is this worthwhile to do just to make sure we've looked under every rock and every nook and cranny? I don't think it is. It feels punitive if we continue, because there is no substantial objective basis at this point. I understand that people may disagree. But for me, that's where I'm leaning."
Ultimately, the four commissioner nominated by Republicans voted in favor of more investigation. Three appointed by Democrats were joined by the commissioner appointed by former Gov. Kate Brown in voting against it, and a final commissioner was absent. But with a tie vote, the ethics complaint alleging that Kotek violated the conflict of interest rule did not have enough to support to go forward, and was dismissed.