Officials at the City of Salem, including the Police Department, along with the Marion County District Attorney's Office, are getting some well-deserved bad press.
After the Salem Reporter editor criticized the City of Salem and Marion County DA for a coverup following a public records request by his publication concerning a suspicious $53,500 payment to former deputy police chief Steve Bellshaw, today the Sunday Oregonian had a letter from the editor that makes similar criticisms.
Here's the letter from Therese Bottomly. It makes for interesting reading, especially for those of us concerned about government transparency and public accountability.
In decades of advocating for the public’s right to know, I am rarely surprised by government obstinacy. But a recent public records decision by the Marion County District Attorney’s office is truly confounding.
Here are the facts, as I understand them: A news team managed by a former colleague, longtime investigative journalist Les Zaitz, sought records related to the mysterious and sudden departure of Salem deputy police chief Steve Bellshaw.
This is classic local journalism. Salem residents have every right to know why a top-ranking city official – one with the power to arrest, one who may testify against citizens in court and one who had been granted a parting gift of $53,500 of taxpayer dollars – had simply disappeared from the city rolls.
Zaitz’s Salem Reporter, a small but aggressive newsroom, asked for city records, including misconduct complaints and records compiled for any personnel investigation.
The city denied the Reporter’s request for records related to the departure, and the newsroom appealed to the district attorney. Paige Clarkson’s office denied the appeal.
That, in itself, is shocking to me. The facts appear to strongly favor disclosure. But what Zaitz then reported is the real bellringer:
Amy Queen, the deputy district attorney who signed the opinion on behalf of Clarkson’s office, is married to a Salem police officer and has accepted campaign contributions from the police union, Zaitz wrote.
“That means Queen is ruling on whether her husband’s employer is improperly withholding information from the public,” Zaitz said in a column for the Reporter. “In addition, one of the largest donors to Queen’s current campaign to become a state judge: the Salem Police Employees Union, which gave $3,000 on Aug. 18.
“That seems a significant conflict – and one not disclosed by Queen, Clarkson or the resulting order that said the public wasn’t entitled to a single piece of paper about this matter.”
“This was not and is not a conflict in this matter as the legal assessment and any conclusions were supervised by me and the decisions were only finalized and letter approved once I reviewed the pertinent information in light of the law,” Clarkson told me.
Clarkson, too, was married to a Salem Police employee. Her husband left the department “over a year” ago to become a police chief in Central Oregon, she said. She doesn’t consider that a conflict, either.
Clarkson’s office should have asked another Oregon district attorney to handle the matter or at a minimum assigned the appeal to someone other than Queen.
District attorneys are supposed to act in a “quasi-judicial” role when they consider public records appeals. In other words, like a judge. The seeker of records makes his or her case and the public body has the burden of defending its denial. The district attorney hears both sides and then issues an order.
A “quasi-judicial” role implies an impartiality that does not appear to have been the case here.
One of the underpinnings of public disclosure laws is that the public has the right to see how government is spending the public’s money. That’s why salaries for public officials are open to all, budgets are posted online, and contracts can be examined.
Secret settlements corrode the trust in public bodies. We all know that employers sometimes make a judicious decision: pay a little money to help a problem employee move along and save a lot of expense, time and headache that might come from a lawsuit.
But if that’s what Salem did, the citizens have a right to know it.
The city of Salem told me “an investigation was contemplated, but neither initiated nor completed,” and the decision between Bellshaw and the police department to part ways was “mutual.”
Under Oregon’s public records law, some documents are exempt from disclosure. Many exemptions, however, have what is known as a “public interest” test -- that is, does the public interest in the information in a particular instance weigh in favor of disclosure.
Decades of court and attorney general’s office rulings on public records disputes give substantive guidance for deciding these conflicts. And that brings us back to the Marion County district attorney’s decision.
Queen’s order, endorsed by Clarkson, said the records were properly withheld from the public because they were protected by attorney-client privilege; by a statute shielding records of investigations that do not result in discipline; and by various exemptions, including the confidential submissions, personal privacy and disciplinary exemptions.
For starters, let’s take the attorney-client privilege, which is intended to let clients speak freely to attorneys and receive confidential advice. The city, of course, is the client. It can waive the privilege and release the records to the public, which arguably is the ultimate client.
The other statute and exemptions the city cites each has a public interest test. It seems clear to me, as a longtime user of the public records law, the facts stack up in favor of disclosure.
First, the public records law is a disclosure law. Any analysis by the district attorney must start with the presumption in favor of releasing records. Secrecy is the answer only if there is no path toward public release.
Previous court decisions make clear the public interest in this case is overwhelming. In a 1984 ruling, the Oregon Court of Appeals singled out police work as of special interest, saying there is “a significant public interest in the manner in which those duties are discharged.”
The appeals court, in a 1999 case, also ruled that even the off-duty, private conduct of a high-ranking police official should be disclosed if the conduct bore directly on the official’s integrity.
Finally, the public and other public employees have a strong interest in knowing misconduct investigations are handled fairly and properly. Other police employees need to know that office politics, petty grudges, favoritism and the like had no place in the resolution here.
The circumstances of this district attorney order do nothing to enhance trust in government. Quite the opposite. The Marion County District Attorney should rescind the order and recuse her office from the matter.