"The Governor's idiot fiance"....what might be read into Duke Shepherd's "harsh" email about Cylvia Hayes

Wow.

The other day, the Oregonian published an unsolicited email from Duke Shepherd, who had served as ex-Governor Kitzhaber's labor and human services policy adviser. The key part of the email reads:

For the record, other than keeping her occasionally updated on what we might be doing, the Governor's idiot fiancé had no engagement into the $100 M. Kitzhaber wanted a "game changing" investment in housing for homeless families -- because it cut across all the key priorities, but especially Early Learning. He directed Margaret and me to make it happen. We did. Margaret especially (we initially were aiming for $200M).

Cylvia had lots of mind numbing meetings on poverty. She gave lots of speeches. She had no role in this substantial and critically important decision on housing for the 15-17 budget. We kept her posted to keep her off our backs and off of his. But the budget wasn't hers.

"[I]diot fiance" ... ? That is pretty harsh (as the Oregonian characterized it).

Note that Shepherd now works for the Oregon Health & Science University. Back when he was working for Kitzhaber, though, he apparently dared not express such open contempt to Cylvia Hayes. The Oregonian printed a presumably representative email in which Shepherd, after being castigated by Hayes for not keeping her updated about some project, responded, "I'm very sorry for my oversight in communication on this matter. I should have remembered to update you in a timely manner."

To be fair, Shepherd's response seems entirely professional and civil. The point is that it stands in stark contrast to his current email. So what are we to make of the change in tone and substance?

One possibility is that this is some kind of damage control on behalf of Kitzhaber. By calling Hayes the "idiot fiance," Shepherd distances himself from her, and thereby adds credibility in stating that she had no influence on the low income housing project. If other former aides to the ex-Governor have similar things to say, that would benefit Hayes and Kitzhaber - though at the price of public humiliation - because it would tend to weaken any theory of influence peddling by her.

I went back to the known FBI subpoena to see if Duke Shepherd's name is listed; it's not. Of course, just because someone is listed on the subpoena doesn't mean he or she is a potential target*, and not being listed on the subpoena isn't any kind of immunity. However, it does suggest that as of right now, Shepherd's previous project isn't of primary interest to the FBI.

* Nkenge Harmon-Johnson is probably the easiest example of this; she's listed on the subpoena as someone whom emails to or from are to be produced to the FBI, yet she hasn't requested public funding for a lawyer, and it appears that she was a victim of Hayes' capricious temper.

Another possibility for the harsh email is that there is no more concern about burning a bridge, because the bridge has already collapsed completely with no hope of ever being rebuilt. If other former aides also recognize that the bridge is gone, there may be cooperation with the FBI going on behind the scenes.

Is it the fox guarding the henhouse when a lawyer reviews her client's documents to determine which can be disclosed?

Two weeks ago, ex-Governor Kitzhaber's defense lawyer, Janet Hoffman, went on the offensive, calling for an independent investigation of how Kitzhaber's emails were leaked to the press. Hoffman also sought to block the Department of Administrative Services (DAS) from complying with a federal subpoena until she had a chance to review the documents herself. The Oregonian reports that DAS has agreed to give her until March 16 to file a motion in federal court to quash the subpoena.

But is what Hoffman asked for in the first place crazy? It might sound like the fox guarding the henhouse to have a client's lawyer go through the client's documents to decide which can be produced to the other side, but it's actually the normal mode of business in civil litigation. Say plaintiff sues defendant for employment discrimination. Each side might seek documents from the other. Each side's lawyer goes through the discovery requests and the documents to determine which are responsive to the requests, and of those, which will be withheld on privilege or other confidential grounds. Those that are withheld are identified on a privilege log, which lists the documents by title, author, date, and basis for withholding (i.e., attorney-client privilege or attorney work product). The privilege log allows for some limited basis of challenging the withholding.*

* For example, if a party claimed the attorney-client privilege over a document that was neither written by a lawyer nor sent to one, there would be reason to question the validity of the assertion of the privilege.

While there are probably isolated instances where attorneys intentionally engage in discovery misconduct, this system seems to work in general because lawyers have a good reason not to destroy or conceal documents. Lawyers do have a duty to represent their clients zealously, but within the rules. A lawyer who destroys or conceals documents for a client risks being disbarred or worse, and at the end of the day, it's probably not worth it for the short term gain to this client.

(When I was a brand new associate at a law firm, at the New Associates' Retreat, a partner told us the story of a matter where an unnamed client had told the lawyer about the existence of a very damaging document. When the lawyer went over to examine the document, the client said that the document was gone. The lawyer said, "I wish you hadn't done that. Now we're going to have to resign as your lawyers." It turned out that the client hadn't destroyed the document but was hoping to get away with not producing it. The bluff having been called, the client had no choice but to turn it over to the lawyer. The lesson of the story for us was that no client was worth risking the firm's reputation or our law licenses.)

Of course, the federal subpoena in question stems from a criminal investigation, not civil litigation, and it is the case that where the government is involved as a litigant, particularly in criminal cases, the usual approach sometimes gives way to one where different teams of lawyers play roles, with one group informally known as the "dirty" team examining potentially privileged documents and segregating those from the unprivileged ones. A separate "clean" team that has not been exposed to the privilege documents carries out the prosecution. (For examples, see here and here.)

We might compare the situation in the Kitzhaber/Hayes saga to the new revelations about former Secretary of State Hillary Clinton's use of a private email account for her official business. There is a certain degree of similarity between Clinton and Kitzhaber in terms of what each did, and perhaps the reasons that skeptics might suspect as to why they did so. But there is an important difference between having Janet Hoffman go through Kitzhaber's emails for privilege review, versus Clinton's staff reviewing the documents, with what survives their review now being turned over to the State Department.

The difference is that Hoffman, while serving as Kitzhaber's lawyer, is clearly independent in the sense that she has a professional existence that does not depend on Kitzhaber; if anything, he at this point is far more dependent on her than the other way around. Clinton's staffers, on the other hand, were and are, in a sense, tied to her political fortunes, and so it would be unreasonable to expect the same level of independence from them.

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)?