When consultants guide gov’t, their records are public

Oregon Governor John Kitzhaber resigned from office earlier this year amid allegations that his First Lady, Cylvia Hayes, concealed large sources of her income from the public. Hayes received well-paid contracts from environmental groups while at the same time Kitzhaber was allowing Hayes to help direct state environmental policy. Kitzhaber thought he could weather the scandal, but with a constant drip of damning details, it became increasingly clear that the couple’s actions were inappropriate.

This week, a judge ruled that Hayes’s work e-mails will be judicially reviewed, and those deemed to be related to state business can be disclosed. During the scandal and continuing since Kitzhaber’s resignation, attorneys for Hayes have argued that she does not have to turn over her work e-mails that were requested by newspapers under a public records request.

On the surface, this case may seem to only be about Oregon politics, but it’s being closely watched here. While Hayes’s role as First Lady was unique, her role as a consultant with direct influence on state policy is not. In fact, many of the same consultants who worked on projects with Hayes also work with our state government.

Public records law is pretty clear regarding communications and work product by government officials and employees. Drafters of our Public Records Act did not foresee that “off-shoring” public business would become commonplace, where consultants work so closely with government employees in the crafting of state policy that they practically are public employees.

There is little case law regarding what documents and communications consultants working with government employees must disclose or under what circumstances they can withhold documents that seem related to official business. Until the Legislature clarifies the Public Records Act or these questions are explored in court cases, the rules and expectations surrounding this type of close governmental involvement by outside groups and consultants will remain nebulous.

The judge’s ruling in the Hayes case, though it only applies to Oregon, is a step in the right direction. When anyone is given responsibility to craft state policy, whether the taxpayers pay their salary or not, the public should always have the right to examine their work product, and their influence.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.