Oregon Ethics Commission Considers Concealing, Destroying Public Recordings

The Oregon Government Ethics Commission is supposed to be the watchdog for how public officials behave.

They slapped big fines on former Gov. John Kitzhaber and his fiancee, Cylvia Hayes, for breaching rules separating public service and private business. Ethics commissioners also review many lower-profile complaints involving teachers and bureaucrats — all with an eye toward protecting taxpayer resources.

But in the wake of one recent case, ethics commissioners debated withholding and even destroying public records.

The case involves high school sports, a Beaverton mom who commissioners dismissively called a "volleyball watchdog," and the rules governing public officials and their private businesses.

OPB reported in February on Beaverton mom Linda Nezbeda, who wanted state officials to investigate high school coaches who also run private club sports. There's no rule or ethical mandate against public employees also running a private businesses, but they can't use their public office to reap private financial gain.

Nezbeda has gathered evidence from student-athletes — especially girls — and their parents that coaches routinely pressure the girls to participate in off-season camps. The implication is that the girls may be excluded from the high school team if they don't join the club team. Female student-athletes reported getting text messages or hearing from coaches at school about the importance of signing up for the private programs.

Some coaches use school facilities for their private club sports, and it didn't appear to always pay for their use, according to records Nezbeda and OPB collected. Contact information for the businesses would sometimes list the high school address as the place of business, further conflating coaches' responsibilities as public employees with their business ventures.

Nezbeda took the issue to the Beaverton school board and the Oregon Department of Education, but was frustrated by jurisdictional hurdles and slow response. So she turned in three coaches to the ethics commission as test cases, with a plan to pursue more.

Nezbeda has spent years gathering evidence, talking to parents and students, and studying financial documents. Ethics investigators get just 30 days to review the allegations and make recommendations to the commission. It's up to commissioners to approve investigations.

Investigators found the coaches were running private businesses and were in a hazy ethical area involving public school resources and contact with students. It was complicated, and investigators asked commissioners to approve an investigation into two of the three coaches involved.

But the appointed commissioners — roughly split between Democrats and Republicans — voted not to investigate any of them. Public records initially released by the ethics commission didn't answer the central question: Why did the commissioners go against the staff recommendation?

OPB requested the recording of the March 30 executive session, in which investigators presented their findings from the preliminary review and commissioners voted against investigating. Ethics commission staff posted the recording to the agency website.

The commissioners sounded deferential to the public employees facing possible investigation. One coach's blurring of private and public sports was dismissed by one commissioner as a "rookie mistake." To some concerned parents, that's an indication of a broader pattern of possible systemic ethical violations — of coaches following a template to exploit their public positions for private gain. Commissioners saw otherwise.

The commissioners' interviews of the three coaches didn't last long; one was just three minutes.

Later, a commissioner asked staff to avoid holding executive sessions for teachers and coaches during spring break because of the inconvenience.

People who file complaints are not allowed to appear at the executive sessions. Linda Nezbeda only knew the complaints had been dismissed at first; she didn't know why until the recording was posted. When she listened to the recording later, she heard little mention of the documents she had provided that showed coaches using school facilities and resources. She heard cases in which coaches appeared, to her view, to be dodging questions or giving answers that conflicted with emails and other records she'd collected.

She also heard commissioners mock her as a "volleyball watchdog" and question her motives for submitting complaints against the coaches.

Nezbeda had offered to help ethics investigators by providing the names of students and parents who might be willing to cooperate. An ethics investigator told the commission that there hadn't been time to follow up on Nezbeda's offer. Still, commissioners chose to stop further investigations into the coaches.

After the investigations were dropped, Nezbeda was left with few options. There is no appeal for complainants after the ethics commission decides not to investigate. The state ethics process also forbids repeated claims into the same conduct, a check put in place to avoid warrantless harassment of public employees.

But Nezbeda says that prohibition against further complaints has led at least one of the coaches involved to continue pressuring students to pay for outside club sports he runs, without fear of being investigated for ethics violations. Nezbeda said she was told she can present new evidence, but it's up to commissioners to accept the documentation.

Commissioners learned that the executive session recording had been released from an email Nezbeda wrote, which executive director Ron Bersin included in the commission's materials at its next meeting in May.

In that email, Nezbeda offered additional evidence and critiqued the responses from the coaches. For instance, one of the coaches had offered only three invoices to show she had paid for use of a school facility by her private business, but the dates of the invoices suggested they were generated after the coach knew she was being investigated, rather than when she actually used the gym. Nezbeda offered evidence the coach used facilities many other times.

Nezbeda underscored the costs involved — students could be expected to pay upwards of $800 to play a sport.

The release of the executive session recording led to a worried response from the ethics commission.

One commissioner asked about re-opening cases involving the high school coaches. a sticky proposition given the commission's rules. But more of the response from the appointed commissioners involved ways to conceal what happens behind closed doors in their executive sessions, out of an interest to protect the privacy of the accused.

Commissioners asked if it was possible to stop recording meetings or not share the audio with the public.

"I would like us to talk about recording of executive sessions, and whether we want to change our practice with respect to how we comply with public records law," said Kamala Shugar, a commissioner from Eugene, appointed by the Democratic leaders in the Oregon House.

Shugar suggested abandoning the commission's practice of recording executive sessions and instead relying on minutes. She said if the commission had to record its executive sessions, those recordings should not be posted publicly.

"I don't think it's in the best interests of the people who come before the commission for those to be placed on the internet to be available willy-nilly," Shugar said.

The commission’s executive director Ron Bersin pushed back. He said as the government ethics commission the goal should be to open up their process, not wall it off. Bersin explained that while the commission's executive sessions are held in private, the deliberations are public after they make decisions.

“I think that we're the ones that should be leading this transparency issue and I put the recordings out, and it's exactly what was said, exactly at that time,” Bersin told the commissioners, in part to explain why written minutes or summaries were insufficient.

Yet commissioners continued to look to move away from audio recordings. One commissioner, whom OPB couldn't identify, asked about deleting recordings of meetings.

“What would people think about recording the executive sessions, using the recordings to come up with detailed written minutes, and then deleting the recordings?” he asked.

An attorney advising the commission responded, “That would be against the law.”

The commission concluded by agreeing to make the recordings and consider them public records. Bersin didn't respond to emails asking if those recordings would be posted routinely to the agency website, or posted only through public record requests.

Meanwhile, Nezbeda plans to file more ethics complaints against more high school coaches.

Oregon Ethics Commission Considers Concealing, Destroying Public Recordings

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