Letter from the Editor: Still seeking greater transparency from Oregon Ethics Commission

As regular readers are aware, I am in favor of letting Oregonians know how their tax dollars are spent and I persistently advocate for government transparency.

I recently wrote about difficulties several reporters had in piercing the opacity of the Oregon Government Ethics Commission’s activities. Confusion over what was public and what was not resulted in delays in reporting the commission’s actions in a high-profile case involving former Oregon Secretary of State Shemia Fagan.

In particular, I raised questions about the confusing admonition given media representatives covering the meeting. At the beginning of executive session, a nonpublic portion of the meeting that reporters can monitor, journalists were told they could not repeat what they heard.

That’s a standard warning in Oregon. But the Ethics Commission is unusual: Once it makes a final determination in executive session, the information becomes public – despite what journalists were told at the start.

I had a few ideas to improve on this and other things, which I shared with the Ethics Commission. First, I suggested the commission modify the admonition they give journalists.

Instead of saying “You may not report on what you hear today in executive session,” the staff could simply say, “You may not report on what you hear today in executive session until we vote and adjourn; then, everything is public.”

Susan Myers, compliance and education coordinator for the commission, told me a change was in the works. “We are also making improvements to our executive session announcement/media admonition to provide greater clarification as to when the news media can report on matters discussed in the Commission’s executive sessions,” she said.

That’s terrific news.

Some of my other ideas did not go over so well.

I had suggested that when the commission posts the executive session agenda publicly, it should remove the word “confidential” from it. Labeling something confidential when it actually is public is unnecessarily confusing.

“We have concerns about altering a public record (by removing the “confidential” from the executive session agenda after it gets posted),” Myers said.

I don’t see this as altering a public record as much as creating a new one. If an Ethics Commission staff member jots notes in the margins of the agenda, that document – doodles and all – is now a new public record.

Myers did acknowledge there may be better ways to communicate that the once-secret agenda was now public. “We will continue to look into this issue,” she said.

Another idea was that the Ethics Commission briefly identify the subjects of the executive session, so interested journalists could decide whether to attend. Something simple, like “In re: Shemia Fagan,” would suffice.

This was a hard no, according to Myers. “We cannot do so,” she said.

She argued that, under statute, the preliminary review phase of a case is confidential until the Ethics Commission votes on it.

“Identifying the preliminary review cases on a public agenda before the Commission has made its final determination would violate this confidentiality requirement and subject Commission staff to a civil penalty of up to $1,000,” Myers said.

However, the commission’s executive director routinely discloses when a preliminary review is in the works.

On May 2, the Oregon Capital Chronicle quoted Ethics Commission executive director Ron Bersin on the record, confirming the fact of a preliminary review into Fagan’s conduct: “The Oregon Government Ethics Commission began investigating Fagan’s contract on April 28 in response to a written complaint and has since received a second complaint, Executive Director Ron Bersin said in an email.” That was at least six weeks before the commission’s vote on the issue.

In March, he confirmed to The Oregonian/OregonLive the Ethics Commission had launched a preliminary review into the hoarding of top-shelf liquor by Oregon Liquor and Cannabis Commission officials. Then, in July, he told reporters the preliminary review would be paused while a criminal investigation was pursued.

The record is replete with examples of the Ethics Commission publicly acknowledging the fact of a preliminary review when asked. Logically, it follows that there is nothing keeping the commission from systematically posting the cases it will take up.

One other suggestion of mine was that the commission designate a media liaison and provide that person training, so that media and others would get one clear message about when information is public and reportable.

“Our Executive Director is, and always has been, our media liaison,” Myers replied. That works well, except when Bersin is stuck in a meeting for hours and cannot respond to inquiries, as happened in the Fagan case.

A fourth suggestion: Post a one-sentence summary of the case and each commissioner’s vote on the website, just as the meeting recordings are posted. That way Oregonians don’t have to listen to the tape recording of the whole executive session to find out the result.

“Listening to the entire executive session recording is not necessary,” Myers said. “We also post the audio recordings for that executive session, broken into discrete sections identified by agenda item numbers.”

That’s true. But of the six segments posted after this month’s session, three were 25 to 36 minutes long. Not an efficient way to get information out.

She also noted the record of each commissioner’s vote, by name, is included in the meeting minutes, which are posted to the website once approved.

Also true, but the minutes are not approved until the next meeting, typically a month later. Again, not efficient or timely.

Myers did say the commission had recently established a dedicated media email address “to better facilitate communications with and requests from news media.”

I emailed the commission through that new address and received a prompt reply. I eagerly await the commission’s additional steps toward transparency.

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