Wednesday, April 1, 2015

Is Cylvia Hayes really entitled to taxpayer-funding of her lawyer to block access to her emails?

The Oregonian reports that former First Lady Cylvia Hayes' lawyer, Whitney Boise, argued in a filing last week that Hayes is entitled to public funding of his attorney's fees for representing her in her effort to block public access to her emails:
As a state agency, Ms. Hayes is authorized by ORS 192.450(3) to retain special counsel to represent her in the legal challenge to the Attorney General's disclosure order. As the Attorney General's Office is prohibited from acting as special counsel in this proceeding, Ms. Hayes has hired me. This conclusion, that Ms. Hayes be allowed to retain special counsel. is further codified in ORS 182.235. Under this statute, where the Attorney General has a conflict, the state officer or agency may employ its own special counsel. ORS 182.235(1).
Based on the above statutes, I am requesting that the legal fees and costs incurred by Ms. Hayes in this case be paid by the State of Oregon. Please let me know as soon as possible whether this request will be granted. 
(Note that there's a typo in the letter. The correct statutory section is ORS 180.235, not 182.235).

This is a creative argument. It may sound outlandish, but there are other situations in which the public is obligated to pay for the attorneys to defend someone that the public is, ostensibly, in an adverse position to - for example, criminal defense. The overarching principle is that the public interest in ensuring adequate legal representation for indigent persons charged with crimes is more important than the mere interest in the public fisc; after all, criminal defendants are presumed innocent until proven guilty, and it benefits society to have confidence that a convicted defendant received a fair trial.

It's less clear that in a public records dispute, there's a similar public interest, but I suppose one could argue that without some legal guarantee that a state agency would be able to defend its records from unreasonable or unwarranted public disclosure, qualified persons might be dissuaded from seeking public office or employment.

But what do Oregon laws actually say? Let's take a look. First, we'll start with ORS 192.450:
(3) The Attorney General shall serve as counsel for the state agency in a suit filed under subsection (2) of this section if the suit arises out of a determination by the Attorney General that the public record should not be disclosed, or that a part of the public record should not be disclosed if the state agency has fully complied with the order of the Attorney General requiring disclosure of another part or parts of the public record, and in no other case. In any case in which the Attorney General is prohibited from serving as counsel for the state agency, the agency may retain special counsel.
So far, Mr. Boise is correct. ORS 192.450 obligates the Attorney General to defend the state agency if she determines that the records sought should not be disclosed, and the petitioner (i.e., the person seeking the records) sues to overturn that determination. In this matter, however, Attorney General Ellen Rosenblum ordered the disclosure of the records, so the last sentence of subpart (3) is operative: "the agency may retain special counsel."

But that statute says nothing about who pays for the special counsel. Mr. Boise cites ORS 180.235, which is titled "Authority of agency to employ counsel" and which states in relevant part:
(1) Notwithstanding any provision of law to the contrary, whenever the Attorney General concludes that it is inappropriate and contrary to the public interest for the office of the Attorney General to concurrently represent more than one public officer or agency in a particular matter or class of matters in circumstances which would create or tend to create a conflict of interest on the part of the Attorney General, the Attorney General may authorize one or both of such officers or agencies to employ its own general or special counsel in the particular matter or class of matters and in related matters. Such authorization may be terminated by the Attorney General whenever the Attorney General determines that separate representation is no longer appropriate. 
(2) Any counsel so employed shall be a member of the Oregon State Bar and shall be paid a salary or other compensation out of the funds appropriated to such officer or agency.

It certainly makes sense that an agency disagreeing with the Attorney General's determination in a public records fight would be allowed to retain its own lawyer to litigate the matter. But notice that ORS 180.235(2) states that it is the agency that pays for the lawyer out of its own budget. This too makes sense, in that it creates an incentive for an agency to think carefully about whether each public records request is worth fighting. If so, the agency has to put its money where its mouth is, so to speak. Without such a requirement, the agency would have no incentive not to over-litigate public records disclosures.

The wrinkle here is that Ms. Hayes was paid no salary and had no state funds formally appropriated to her, though one might argue that the nature of her position as a state officer flowed from her relationship with the former Governor, and hence the funding should come out of the budget for the Governor's office. I imagine that if we were to go down that route, though, that current Governor Kate Brown would decline to pay for Mr. Boise's fees out of her budget - and if forced, she might just disclaim any privacy interest in the records on the part of the Governor's office.

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