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.

Taking a look at Cylvia Hayes' lawsuit against the Oregonian

Former Oregon First Lady Cylvia Hayes filed a lawsuit against the Oregonian on Wednesday, seeking to block access to her emails stored on her computer, after the newspaper made a public records request a month earlier. Let's take a look at the complaint.

First, it seeks a "declaratory judgment" that (1) she is neither a public body nor a public official; (2) compelling her to produce her emails would be an unreasonable violation of her privacy; (3) compelling her to produce her emails would violate her right against self-incrimination; (4) if required to produce the emails, she should have "reasonable time" to respond and she should be able to recover fees for the cost involved.

Like a regular lawsuit, a declaratory judgment settles a legal issue between parties. ORS 28.010 states:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a judgment.

A party who would normally be the defendant in a lawsuit might seek a declaratory judgment as a way to get a jump on the other side. For example, if there were a potential contract dispute between parties to the contract, one side might want to get a court ruling that the contract is invalid without breaching the contract and then raising the invalidity as a defense - after all, if you lose that lawsuit, you are then on the hook for breach of contract. With a declaratory judgment, you could find out if you are correct that the contract is invalid; if you're wrong, you can still comply with it and not be in breach.

So in this instance, Hayes is basically asking the court to determine that she doesn't have to turn over the emails, as opposed to her refusing to turn over the emails and then defending her failure to do so later on in court. It's primarily a matter of timing.*

* Sometimes there is a question of whether a complaint seeking declaratory relief is sufficiently "ripe," meaning, ready to be resolved by a court. Generally, this problem arises when the dispute is too abstract or uncertain. In this instance, however, Hayes' status as a public official or private citizen seems concrete enough, especially given the Attorney General's earlier ruling that she indeed was a public official.

Second, Hayes argues that she is neither a public body nor a public official, and hence her emails are not public records within the meaning of the public access statute. Here, she seems to rely on the points she earlier raised unsuccessfully before the Attorney General - that her role was "largely advisory or ceremonial," that she lacked "actual or apparent authority to make binding decisions for the State of Oregon," that she was not paid, that she was not supervised by anyone (though that seems to have been part of the problem!), that she was neither an employee nor an officer of the State, nor elected nor appointed to any position. The Attorney General's order is quite detailed and thorough, and addressed Hayes' points (though of course, a court might view the relevant precedents differently).

Third, Hayes' claim of the Fifth Amendment privilege against self-incrimination has drawn a lot of media headlines. (Oregonian; Portland Business Journal; Daily Astorian) The Fifth Amendment protects a person from being forced to testify about matters that might tend to incriminate him or her. To the extent that the compelled disclosure of Hayes emails might incriminate her, the self-incrimination problem isn't about the emails, which speak for themselves, but rather, the act of producing those emails.

Hayes' complaint cites United States v. Hubbell, which provides a good discussion of the problem. Hubbell was investigated by the Office of the Independent Counsel as part of the Whitewater matter during the Clinton Administration. Following his conviction pursuant to a plea deal where he agreed to cooperate, the OIC served a subpoena to get access to documents to check the veracity of Hubbell's cooperation. Hubbell refused to do so, claiming his Fifth Amendment privilege. The Supreme Court explained:

More relevant to this case is the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not “compelled” within the meaning of the privilege. Our decision in Fisher v. United States, 425 U.S. 391 (1976), dealt with summonses issued by the Internal Revenue Service (IRS) seeking working papers used in the preparation of tax returns. Because the papers had been voluntarily prepared prior to the issuance of the summonses, they could not be “said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.” [snip] It is clear, therefore, that respondent Hubbell could not avoid compliance with the subpoena served on him merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by himself.

On the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.

What this means is that by responding to the Attorney General's order and turning over the emails, Hayes would be implicitly conceding that (1) these are her emails; and (2) they fall within the scope of the public records request. Those concessions would be important if the matter were to proceed to trial, because the emails could be entered into evidence without any further need for authentication (which basically means, a showing that they are real).

One way to see the significance of this concession is to imagine if, say, the FBI had obtained the same emails through a search warrant. Not only would law enforcement have to figure out which of her emails were responsive (as opposed to making her do the work), but now in a trial, the prosecution would have to figure out some way to authenticate the emails. Perhaps it would be enough to show that they were taken from Hayes' personal computer, but there would have to be some way to show that the email was hers. (This might not be that difficult here, in that people who received emails from Hayes could presumably testify that they recognize her email address.)

If the Fifth Amendment privilege applies, does that mean that the emails can't be obtained? I'd guess that for the vast majority of responsive emails, the answer is no, because they were sent to someone else whom the media can obtain them from. However, I suppose there might be some that might be responsive between Hayes and ex-Governor Kitzhaber (e.g., hypothetically discussing how she would or would not act with regard to Oregon business), and if each raised the Fifth Amendment act of production issue, both sender and recipient would be blocking public access.

That would leave immunity as the other option. There are three kinds of immunity: transaction, use, and derivative use. Transactional immunity is the gold standard; having transactional immunity means that the person can't be prosecuted for the subject matter of the immunity. Use immunity means that the specific testimony being compelled can't be used as evidence against the person, but the government can still bring charges using evidence it gets elsewhere. Derivative use immunity means the government can't use not just the specific testimony being compelled, but also any evidence that it discovers as a result of what it learned from the compelled testimony. In other words, say that a person receives use immunity and then is compelled to testify about a crime, during which the person admits to burying the murder weapon in a particular location. The person's confession is protected by use immunity, while the murder weapon is protected by derivative use immunity (unless the government can show it would have found the weapon anyway). The Fifth Amdnment doesn't require transactional immunity, but it does require use AND derivative use immunity as an alternative to the privilege itself, according to Kastigar v. United States.

This brings us back to Hubbell. The typical Kastigar situation (i.e., use and derivative use immunity) occurs when a person is compelled to testify; it's not generally about the act of production. Hubbell, by contrast, was. So Hubbell is a much closer analogue to Hayes' claimed defense. Hubbell received immunity for the act of production, and in his subsequent prosecution, the OIC indeed honored the immunity by not using the act of production to authenticate any documents compelled via subpoena. As the Supreme Court put it, the OIC took the position that it was as if the documents had magically appeared in the grand jury room.

Hubbell ruled, however, that the use of the compelled documents to find other sources of evidence was indeed a derivative use, and critically, that it was not enough that the OIC refrained from using the act of production itself. The problem - and here, I should note that Hubbell is far from a straightfoward case - seems to have been that the subpoena directed against Hubbell was so broad that it required him to use his own thinking against himself in deciding what was covered by the subpoena. Indeed, although the OIC was not even thinking about tax fraud at the time it issued the subpoena, that is one of the charges that it indicted Hubbell on after receiving the documents and studying them. Hubbell stands as a warning, therefore, that with a very broad subpoena, derivative use immunity might cast a long shadow.

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

Last 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)?