Friday, February 20, 2015

Taking a look at the FBI subpoena to Dept. of Admin. Services, part 1

subpoena%20clipartLast week, the FBI served a subpoena on the Department of Administrative Services, seeking production of documents relating to 15 named people (including ex-Governor Kitzhaber and ex-First Lady Cylvia Hayes) and to a list of companies/topics primarily concerning clean energy groups that Hayes dealt with, plus a few other topics such as (1) Hayes' state income tax returns and (2) personnel files. Needless to say, there is much to be learned about what the federal government's investigation is focusing on - indeed, far too much to cover in a single blog post.
For this entry, I'm going to look at one discrete piece involving Hayes. The subpoena seeks documents relating to:
Travel records including calendars, requests for permission to travel, travel itineraries, receipts for travel expenses, travel expense reports and/or requests for reimbursement, airline reservation confirmations, lodging reservation confirmations and invoices, and payments for airfare, lodging, meals, and entertainment.
All documents and records relating to Cylvia Lynne Hayes' use of State of Oregon credit cards or other forms of payment, including monthly statements and payment history.
There are a number of different ways travel and expense-related documents might be relevant to the federal investigation, but the most obvious starting point is to determine if Cylvia Hayes was a "public official." Oregon Revised Statute 244.020 defines a public official as:
any person who, when an alleged violation of this chapter occurs, is serving the State of Oregon or any of its political subdivisions or any other public body as defined in ORS174.109 (Public body defined) as an elected official, appointed official, employee or agent, irrespective of whether the person is compensated for the services.
(emphasis added). If Hayes was a public official, then the mail/wire fraud deprivation of the right to honest services theory* might well apply to the alleged misconduct that's been driving the news stories for the past two weeks.

* I'll write more about this in detail at another time, but the essence of the theory is that a public official who engages in self-dealing through kickbacks or bribery has deprived the public of the right to that official's "honest services."

If there are documents responsive to the two categories excerpted above, they might tend to support the conclusion that Hayes in fact was a public official if those documents include travel reimbursements, expense reports, and the like. After all, travel expense reimbursements are typically provided by the employer.

To be sure, the mere fact that someone has reimbursed you for travel expenses does not automatically make you an agent of that person/entity. For example, when I travel for academic reasons, it's usually to go to present a paper or to take part in a conference. Most of the time, it's the institution inviting me that pays for my travel expenses. Yet, that doesn't make me an agent or employee of that institution. I remain an employee of Lewis & Clark Law School. The key here is that the other institution is inviting me to do something that is supposed to provide some benefit to it, and of course, the fact that it is a one-shot interaction further demonstrates the lack of any agency or employee relationship.

Assuming that Hayes has had travel expenses reimbursed by the state of Oregon, it's not implausible that Hayes could have a similar, arms-length relationship with the state, where she was reimbursed because she was being invited or asked to do something on behalf of the state. On the other hand, the fact that she was living with and engaged to the Governor makes it seem unlikely that there would such a distant relationship with the state. More importantly, this will really turn on the exact content of those trips - who benefited, Oregon or Hayes (or both)?

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