The top attorney for Gov. Kate Brown has turned down a controversial judicial appointment following allegations he improperly tried to exert influence over the state's chief public transparency advocate.
Misha Isaak, the governor’s general counsel, announced Tuesday he would reject his appointment by Brown to the Oregon Court of Appeals — a move that has received scrutiny both because of recent claims against Isaak and the odd manner in which he was selected.
“I have worked hard to earn a professional reputation beyond ethical reproach,” Isaak wrote in his resignation letter to the governor. “I am not willing to accept further damage to my reputation that could arise from joining the bench under a cloud of controversy.”
The decision comes amid furor sparked last week, when Oregon public records advocate Ginger McCall announced her surprise resignation and said Isaak was largely to blame.
McCall says Isaak repeatedly tried to influence how she carried out her position, which is charged with promoting public records and government transparency in the state.
While McCall was hired with the understanding her role would be largely independent, she has said Isaak began to exert pressure after McCall and a public board she oversees released a report critical of the state’s public records laws. She also says Isaak instructed her that he was her direct supervisor and that it was her duty to kill proposed changes to records laws if those changes could put the governor in an uncomfortable position politically.
“It was deeply troubling to me that an office that was billed to the public very clearly as being an independent office was then suffering from secret political pressure,” McCall told OPB’s “Think Out Loud” last week.
But in a statement released Tuesday, Isaak said he wasn’t aware McCall had concerns.
“If she had alerted me or others in the governor’s office to her concerns over the eight months since our meeting, I would have taken pains to address them,” Isaak wrote. “I was invested in her success and had no intention of politicizing her role or the mission and goals of her office. Also, at no time did I insist on secrecy about our conversation.”
According to McCall, Isaak took issue with House Bill 2431, which the advisory council had put forward for the upcoming legislative session. The bill would have required state agencies to report certain data regarding public records each year.
The governor said she does support that bill and she thinks it’s important for the advocate to be able to introduce and craft legislation in the future.
“One of the challenges with this situation is that we have two competing perspectives. I am not disputing how Ginger McCall felt, I think that’s critically important and informs us in terms of how we need to move forward," the governor said. "From my perspective, moving forward means having the structure and the mechanics of the public records advocate be out from under the purview of any elected official and out from the administration of the executive branch.”
Isaak will continue to serve as the governor’s general counsel, but will not be engaged with appointing judges or overseeing public records.
With Isaak’s decision, calls from transparency advocates and political rivals for Brown to rescind the appointment are moot. Concerns over how the governor fills judicial vacancies going forward are likely to continue.
Willamette Week has reported that Brown chose Isaak, her longtime lawyer, outside the normal process her office typically employs for judicial appointments. The vacancy Isaak was intended to fill in the appeals court was never posted publicly, meaning interested applicants were not aware of the opening. Instead, Brown's staff considered Isaak and finalists from a previous vacancy. Only Isaak was granted an interview with a panel the governor's office convened to vet candidates.
At 37, Isaak has never served as a judge. A graduate of Reed College and the University of Pennsylvania, he spent time in private practice before joining Brown’s staff in 2015. Most notably, Isaak was an attorney in the case that in 2014 legalized same-sex marriages in Oregon.
Brown said in the future she will announce vacancies on the Oregon bench publicly and standardize the process of appointing judges.
Though fallout over McCall’s story increased over the course of last week, Brown never responded to calls from editorial boards, journalists and political rivals to rescind Isaak’s nomination. In her initial statement since McCall’s resignation, the governor expressed surprise, and suggested McCall should have brought her concerns forth sooner.
“It appears this is a situation where staff were conflicted between the goals of serving the Governor and promoting the cause of transparency,” Brown said in a written statement released Sept. 9. “Let me be clear, there should be no conflict."
Hours before Brown released those remarks, a spokesman had flatly called allegations by McCall “untrue.”
On a phone call Tuesday, Brown emphasized how important McCall’s success was to her.
“This was legislation I crafted,” Brown said, referring to the creation of the public record advocate position. “I’m totally aware the structure and the mechanics were confusing; my goal was for her to be a success, and I think she has been. And I think it’s unfortunate she is choosing to leave at this point.”
Beyond altering Isaak's professional plans, McCall's allegations appear likely to change the structure of the job she's leaving. In an emergency meeting last week, the state's Public Records Advisory Council voted to recommend that the public records advocate role be as independent as possible under the state constitution.
That could mean a situation where the council, largely appointed by Brown, is solely responsible for hiring and firing a records advocate. Currently, the council submits the names of three finalists to the governor, who has final say on who serves in the advocate role.