Ore.’s Ex-First Lady Must to Turn Over Emails

     SALEM, Ore. (CN) – Cylvia Hayes – whose business dealings contributed to the resignation of her fiance, Oregon Gov. John Kitzhaber – must turn over emails to The Oregonian newspaper, a judge ruled Wednesday.
     Hayes sued The Oregonian in Marion County Court in February in response to the newspaper’s demand for her emails under the Oregon Public Records Law.
     The Oregonian on Jan. 29 demanded all emails that Hayes sent, received or was copied on since Jan. 1, 2011, if the messages concern state business or include the phrase “first lady” or the acronym “FLO” (First Lady of Oregon), regardless of where they are stored.
     Hayes filed an opposition to The Oregonian’s request on Feb. 9, claiming the Oregon Public Records Law does not pertain to her because she is not a public official. The Attorney General’s Office denied it and granted The Oregonian’s request on Feb. 12. It ordered Hayes to “turn over all emails that relate to the conduct of public business,” according to Hayes’ lawsuit.
     Kitzhaber resigned on Feb. 15 during his fourth term as governor. The FBI and the IRS are investigating claims that he and Hayes advocated agendas set by Hayes’ clients at her private consulting firm, 3E Strategies.
     Kitzhaber has denied wrongdoing and blamed his resignation on the “the escalating media frenzy” after fellow Democrats called for him to step down.
     Governor Kate Brown was sworn in on Feb. 18, and released 94,000 of Hayes’ emails in April.
     In her lawsuit, Hayes claimed the emails The Oregonian wanted were stored on her personal computer and that she did not have a state email address. She said she asked for one, but was denied because she was not a state employee.
     On Wednesday, Marion County Circuit Court Judge Tracy A. Prall disagreed.
     “Gov. Kitzhaber authorized, encouraged and allowed plaintiff to participate actively in the executive branch of government as first lady of Oregon,” Prall wrote. “The fact that plaintiff, as first lady of Oregon, was ‘created by the government,’ specifically by the governor, weighs in favor of finding that plaintiff is a ‘public body.'”
     Hayes “performed functions similar to those functions performed by policy advisors and senior policy advisors employed by the governor’s office,” Prall wrote.
     She headed the Oregon Prosperity Initiative, worked on Oregon’s implementation of the “Genuine Progress Indicator” as a measurement of policy initiatives, often attended high-level executive branch meetings, organized meetings between government officials and managed the work of state employees, Prall found.
     And Prall said that Hayes had the authority to make “binding governmental decisions.”
     The governor’s legal counsel had Hayes sign a conflict-of-interest disclosure form that referred to her as “a public official,” according to the ruling.
     Kitzhaber himself confirmed her authority when he told his chief of staff to make sure that Hayes “had a role in defining and developing his policy around the clean-economy initiative,” Prall wrote.
     The government paid Hayes and reimbursed her for supplies, a computer and other expenses.
     And the official website for the governor’s office included a page devoted to “First Lady Cylvia Hayes.”
     In early February, when the scandal over Hayes’ governmental dealings was in full swing, Kitzhaber announced that Hayes “would no longer have any role in the administration.” That announcement underscored the reality that Hayes “served at the pleasure of the governor,” Prall found.
     Hayes argued that releasing the emails would violate her right to avoid self-incrimination, claiming that the emails could expose her to prosecution in the ongoing investigations by the FBI and the IRS.
     Prall said that may be true.
     “Regardless, a person’s assertion of the Fifth Amendment privilege does not depend on whether a criminal prosecution is pending,” Prall wrote. “The appropriate inquiry is whether the testimony in question would provide evidence of a particular crime.”
     Viewed in that light, a juror could find for Hayes, Prall found.
     But that doesn’t let Hayes off the hook – it only excuses her from determining which emails are constitutionally protected, Prall found.
     Prall ordered Hayes to turn over all of her remaining emails to the court for an in-camera review. Prall said she would then decide which to release to The Oregonian.
     The Oregonian is represented by Charlie Hinkle with Stoel Rives in Portland.
     Hinkle told Courthouse News that The Oregonian wasn’t celebrating yet.
     “We are very happy that the judge ruled on the fundamental issue that Hayes’ records are public records,” Hinkle said. “But the judge recognized that she may have self-incrimination rights to not choose on her own whether some of her emails are private. That complicates matters a bit.”
     “Now the judge is going to have to make that selection. How she is going to do that – how she is going to review the thousands of emails that Hayes has sent over the years – that’s an open question,” Hinkle said.
     “It’s something of a mixed bag because we had hoped the court would deny the self-incrimination claim altogether,” Hinkle said. “Instead, it’s come with this elaborate procedure that’s just going to cause more delay because it’s so complex. This isn’t something the judge is going to be able to do in an hour or two.”
     Hayes is represented by Whitney Boise, with Ransom Blackman of Portland. Boise did not immediately respond to a request for comment.

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