Court of Appeals Reverses Trial Court Blunder in Case Stemming from an Insider Working in Oregon Who Blew the Whistle; Chief Judge's Opinion Affirms that Sellers Must Warn Consumers of Defective Products Sold in Oregon
After deliberating for nearly a year and a half, a unanimous three-member panel of the Oregon Court of Appeals -- including the Chief Judge, who wrote the opinion -- gave Oregonians something to be thankful for just in time for Thanksgiving by reversing a trial court’s decision that, if it had been allowed to stand, would have let a giant drug company conduct a covert “stealth recall” of defectively made drugs instead of using a public recall to ensure that Oregonians did not purchase any of it and all the suspect product was returned to the maker.
The Court of Appeals opinion, reprinted in full below, is a stinging defeat to global consumer products conglomerate Johnson & Johnson and a ringing affirmation that, in Oregon, sellers have a duty to disclose all the material facts – facts that would be important to a consumer – about the products they sell to consumers. The Court concluded by noting that letting Johnson & Johnson’s tactic go unpunished would give an official stamp of approval to “calculated nondisclosure and manipulative suppression of information materially bearing on the purchasing choices of Oregon consumers.”
The opinion may be noticed in Germany, home of Volkswagen/Audi, which was recently revealed to have sold diesel-engine cars all across America that were intentionally loaded with special software intended to defeat government pollution emissions tests. The pollution performance of the so-called “clean diesel” technology cars sold with the undisclosed “defeat” software was a very material fact to Oregonians, where environmental consciousness is relatively high. VW touted the “clean diesel” cars as worthy “green” competitors to hybrids such as Toyota’s Prius series of high-mileage gas-electric hybrids. The Court of Appeals decision in the Motrin case may cause VW even more regret for having marketed directly to and attracted to its cars the very Oregonians most likely to be furious to learn that they were actually driving a much dirtier car than they had been led to believe.
The opinion will be published in Volume 275 of the Oregon Court of Appeals reports of opinions, starting on page 23 (275 Or App 23 (2015)).
The state appeals a judgment dismissing this action pursuant to the Oregon Unlawful Trade Practices Act (UTPA), ORS 646.607 and ORS 646.608, against defendants, who manufacture and distribute the over-the-counter painkiller Motrin. The state argues that the trial court, in dismissing the action under ORCP 21 A(8), erroneously concluded that the failure to disclose a known material risk that goods sold in Oregon may be defective is not actionable under the UTPA. We agree that the trial court so erred. See, e.g., Caldwell v. Pop's Homes, Inc., 54 Or App 104, 634 P2d 471 (1981). Accordingly, we reverse and remand.
Oregonians who have to buy cars or have a car fixed soon find out why those are two of the most-hated experiences in consumer surveys, year after year. The Oregon Department of Justice Consumer Protection division has some guides with some fair advice, especially if you think it through in terms of making a plan for buying a car well before you need one and for avoiding the worst auto repair ripoffs.
One thing most people don't realize is that auto repair is totally unlicensed and almost-totally unregulated in Oregon -- anyone call call themselves a mechanic and open an auto repair shop, no questions asked by anybody, no proof of qualifications or required certifications needed.
The one repair shop law requires anyone who takes money for doing car repairs to give you a written estimate beforehand, and to update the written estimate as more problems are discovered. This law was passed because sleazy repair shops would give consumers a real low-ball estimate to get the car into the shop, disassemble it, and then lower the boom on the consumer once the car couldn't be driven away.
However, even this law is essentially toothless, because there is no law that requires repair shops to buy an insurance bond to protect consumers. That means that, if you don't get an estimate, or if your repair guy winds up leaving your car worse off than when you brought it in, you will have to sue for the damages, and there's nothing saying that he will have any assets you can recover from if you win.
So the key with repair, as with purchases, is to prepare for battle at home, before you step onto the dealer's lot or go to the repair shop. And if you live in an DEQ emissions-testing area, never buy a car on a weekend or after testing hours on weekdays -- your test drive of the car (you do a test drive, right?) should be directly from the dealership to the DEQ test facility, where they will give you a free emissions check. Not a formal test, but a good indication if the car you are thinking about will fail or not.
One thing to always know about purchases at an Oregon car dealer's lot: There is no 3-day right of rescission for a car purchase or lease, even if you do not yet have final approval of financing
Before You Go To The Dealer
Instead of making citizens request information, it's time to make openness the default setting for all Oregon governments instead of just empty rhetoric:
The Oregon Secretary of State's office just issued a lengthy report on the state government's persistent and widespread failure to comply with our Public Records Act. That act, one of the many "Sunshine Laws" that were created around the United States in the 1970s, followed in response to the realization by many that much of the worst harms by public agencies were allowed to grow into such catastrophes because, before these laws, the usual response from a government office to a request for information from ordinary citizen was "Who wants to know?"
The Public Records Act was intended to ban that kind of response, and create a default position of openness based on the idea that citizens in a democracy have a right to know what was being done in their name, and that we all have a right to know how the decisions are made, who influences them, and what was considered. But the many interests who prefer to operate outside the public view have been tireless in throwing up shade barriers, and so the "sunshine" is now less and less bright.
The whole public records act process in Oregon, as elsewhere, has become a bureaucratic swamp of agency evasion, vindictive fees and delay, because they are all baked into the very basis of a public records act where the citizen approaches the government on bended knee with a request for a record, and the government gets to decide whether or not it understands the request, how long it will take to understand the request, how much it will charge the citizen to come to that understanding, and how hard it will fight to oppose the request.
Thus, it is now time to give up on the idea that openness is optional, and that government is to be trusted to consider citizen requests and restrict refusals to produce records to a short list of obvious exceptions.
Instead, Oregon must move to a system where all public records are stored on openly accessible servers that anyone can access day or night and browse, anonymously and freely, without charge, and the records must be indexed so that the records are intelligible.
In this world, the only time citizens will need a public records act request is when a public official has completed the lengthy and somewhat difficult process of getting approval to create and store certain records outside the publicly accessible servers, a process that will create a trail to follow so that the citizen-requester can know that the record exists, who has it, and the reason it's not already available, so that the citizen can challenge the rationale.
We don't need more training for officials on how to handle public records requests -- what we need are systems that make public record requests unnecessary 99.99% of the time, because all the records are either automatically accessible or indisputably not appropriate for public disclosure --- with the burden on the creator of the record to obtain that status before storing the record out of public view.
Below are selected excerpts from the Secretary of State report.
One way agencies can improve transparency is to use technology to be proactive, rather than reactive – that is, simply make public information available upfront, rather than waiting for the public to ask for it. This is the motivation behind Oregon’s Open Data Portal, located at data.oregon.gov.
The report's tepid and cursory recommendations, below, show how hard it will be to penetrate the ossified thinking that prevails in Salem and throughout governments about public records and who should bear the burden of effort with respect to openness in public business.
We have built a needlessly costly and complicated system on a premise that records are born hidden, and can be brought to light through a request and response system that allows for bureaucratic discretion in responding to the requests.
That system needs to be ended and completely reinvented in a simpler way. We do not need more expensive tweaking of an already groaning system that is riddled with politically motivated exceptions that flourish in any such discretion-based system.
As Copernicus showed in demolishing the Ptolemaic celestial model, the best solution to this kind of problem is often to rethink the fundamental premise of the problem, the one that is creating the cascade of smaller problems, not to keep adding refinements to correct the problems caused by the last refinements.
To bring more consistency to agency responses to public records requests, the Department of Administrative Services should provide statewide guidance and training on:
Here is the Executive Summary. For those who find this tl;dr ("too long, didn't read"), here is the translation as OregonPEN sees it:
Most public records requests should never have been necessary because they require no thought to fill and there was no reason that the information should not already have been available to the requester. But whenever a request seeks anything that doesn't fall into the "shouldn't have needed a request to get this," category, the system breaks down, because it inherently tasks bureaucrats with the terrifying responsibility of approving release of information that they may not themselves understand, so the bureaucrat's natural response is to seek additional internal reviews and approvals to find and assess whether anyone will get in trouble for releasing the information. This review wastes vast amounts of resources because people have to stop doing productive work simply to review requests for records of past work. The system is erratic in trying to recover those costs and agencies are adept at using cost-recovery to discourage public insight into their doings.
State Agencies Respond Well to Routine Public Records Requests, but Struggle with Complex Requests and Emerging Technologies
Of particular concern is the number of findings that continue to be uncorrected year after year.
That damning indictment is buried on the exact middle pages -- 5 and 6 of 11 -- the pages least likely to be read in the new report on state financial accounting performance. The graphic below shows the trend; the darker portions of the bar are the UN-corrected problems that carry from year to year.
Oregon is failing to account for the way it spends federal dollars, and the state appears to be losing the battle, as agencies appear -- to the auditors -- to become more and more reliant on the audits to find and fix problems than on their own internal processes and expertise. And the agencies with the worst records divert attention away from others--which means there is no assurance that those other agencies are performing any better. It may just be that they are not being looked at because the negative standout agencies are getting all the attention.
"Last year we reported that some agencies appear to rely on auditors to identify mistakes that should be detected by the agency’s control processes."
The introduction to the report does a good job smoothing things over and making it sound as if the recurring errors are a small problem in a big budget, and that things "continue to improve":
Keeping the State of Oregon Accountable, Fiscal Year 2014
But the actual report belies any confidence that things are improving, at least in the big dollar programs, where small deviations mean large amounts of money being spent without proper accountability. Luckily the authors know that most people won't read past the first page.
Summary of the Financial Statement Audit
Summary of the Single Audit
The boilerplate that accompanies each one of these reports is always written in an opaque language that seems to have been expertly chosen to avoid creating any clear picture in the reader's mind. How much better to say all this than to say "We're supposed to be able to tell where we spent all the federal money."
Authority, Purpose, and Scope
One of the qualities least associated with engineers, at least in the popular media, is a concern for the well-being of humanity. But, despite the stereotype of engineers as blinkered nerds, there are engineers who can be imagined as the endowed chairs of Humane Engineering at great universities. Robert Rapier is one such engineer.
Rapier, who got his start in the “oil bidness” has made a name for himself by writing -- prolifically -- accessible books, articles, presentations, blog posts, primers, and probably graffiti about energy. His writing is always straightforward plain English, and it is imbued with a belief in the power of honest reporting and a touching faith in the willingness of Americans to accept the fundamental law of the universe and engineering: "There ain't no such thing as a free lunch.”
A tireless Sisyphus, Rapier daily rolls the boulder of his knowledge up the side of the mountain of ignorance that America has about energy, which extends from where energy comes from to the costs and consequences of how we use it.
A parent, Rapier seems to get his energy for his task from a desire to help us all think carefully and critically about complex issues that will define the world his children will face. Left on our present course, that is a world where our our behavior, most notably around the capture and use of energy, is taking us very much in the direction opposite our hopes and dreams for the future.
OregonPEN asked Robert if we could republish this latest piece on the Keystone XL decision. He wrote: "Absolutely. You may republish. My goal here is to get people to focus on the much more serious battles that need to be fought and recognize KXL for what it was. The war isn't won; that wasn't really much of a skirmish. People shouldn't get complacent, they should be gearing up for a much bigger fight."
While You Were Distracted by Keystone XL
(By OregonPEN Staff
The Center for Public Integrity, winner of the 2014 Pulitzer Prize for Investigative Reporting, has given Oregon government an F for accountability and transparency. The fact that 11 states earned an F and no state got a grade higher than a C, should not reassure anyone.
Among the Center's findings, conducted in partnership with Global Integrity, the study revealed “state lawmakers and agency officials who operate with glaring conflicts of interest and engage in cozy relationships with lobbyists; ethics and open records laws fraught with loopholes, and watchdog agencies crippled by a lack of funds and staff.”
With kind permission of the Center for Public Integrity, OregonPEN reprints the article below that outlines Oregon’s problems, followed by a fuller description of the national CPI study (see "Laboratories of Democracy?" below).
In the Oregon case, Governor Kitzhaber’s troubles top the list, but there are many aspects to the concerns about public integrity in government. Indeed, OregonPEN has reported just in the last several months of incidents where the Oregon Attorney General’s Office withheld information about a legal settlement of a suit against the state (No. 38, 7 November 2015). This suit was and remains a matter of public record, and there is a state agency (Teacher Standards and Practices Commission) that appears to have willfully violated the Public Meeting Laws, with either the tacit approval or acquiescence of Department of Justice lawyers.
The Center’s method was as follows: For each state, it tracked 245 questions to come up with 12,250 data points across 13 categories. The 13 categories are:
The mission of the Center is “to serve democracy by revealing abuses of power, corruption and betrayal of public trust by powerful public and private institutions, using the tools of investigative journalism.”
Oregon gets F grade in 2015 State Integrity Investigation - Land of ethics, manners hurt by rare scandal
Reprinted with permission from the Center for Public Integrity
OREGON: GRADE:F(58); RANK:44TH
Assessing the systems in place to deter corruption in state government
Public Access to Information: GRADE:F(38); RANK: 34th
Political Financing: GRADE:F(37); RANK: 49th
Electoral Oversight: GRADE:C(74); RANK: 11th
Executive Accountability: GRADE:F(55); RANK: 38th
Legislative Accountability: GRADE:D-(61); RANK: 30th
Judicial Accountability: GRADE:F(55); RANK: 32nd
State Budget Processes: GRADE:C(74); RANK: 27th
State Civil Service Management: GRADE:D(66); RANK: 12th
Procurement: GRADE:F(55); RANK: 45th
Internal Auditing: GRADE:C+(77); RANK: 36th
Lobbying Disclosure: GRADE:F(58); RANK: 30th
State Pension Fund Management: GRADE:F(49); RANK: 43rd
Ethics Enforcement Agencies: GRADE:F(56); RANK: 28th
By Lee van der Voo
12:01 am, November 9, 2015 Updated: 12:05 pm, November 12, 2015
The State Integrity Investigation is a comprehensive assessment of state government accountability and transparency done in partnership with Global Integrity.
November 10, 2015: This story has been corrected.
One day before Oregon’s usual Valentine’s Day statehood celebration this year, the Capitol was awash with reporters chasing a rare story on the abuse of access to power rather than the frosted sheet cake being handed out by the Oregon Wheat Growers League to mark the state’s 156th birthday.
In a state where ethical behavior is assumed rather than regulated, former Gov. John Kitzhaber offered his resignation in a pre-recorded speech heard in his reception room, while de facto-governor Kate Brown prepared for duty in the secretary of state’s office a floor below.
Kitzhaber was being investigated following media reports that his fiancé, a consultant, was selling access to the governor’s office and using state resources for personal gain, and that he blurred the line between his job as governor and his re-election campaign.
For many in the state, Kitzhaber’s resignation is a thing of the past. But the scandal that ensnared the former governor highlighted a wobbly legal framework in Oregon’s government, where good behavior is taken for granted rather than enforced.
That framework explains why Oregon fared poorly in this year’s State Integrity Investigation, earning an overall score of 58 – an F grade – and tied for 44th among the 50 states in the data-driven assessment of state government accountability and transparency by the Center for Public Integrity and Global Integrity.
“It’s not like Chicago or something,” said Dan Lucas, a researcher, policy advocate and chief editor of the blog Oregon Catalyst. Noting four of the last seven Illinois governors went to jail, he said, “We don’t have that level of corruption.”
But Oregon’s relative lack of scandal may be a function more of good manners rather than of law. As Lucas and others note, and this year’s failing grade suggests, lines are easily blurred in Oregon government, and ethical lapses and partisan abuses of power – while often not criminal – have been smoothed over by both political maneuvering and etiquette.
Kitzhaber’s resignation caused Oregon to receive an F in the category of executive accountability. The debacle also ensnared the Oregon Government Ethics Commission, and highlighted why Oregon is one of the worst performing states with regard to access to information (F).
Oregon’s overall failing grade represented a substantial dip from the C- the state received from the last State Integrity Investigation scorecard in 2012, but the grades and scores are not directly comparable due to changes made to improve and update the questions and methodology—like eliminating the category for redistricting, a process that generally occurs only once every 10 years.
Ethics Commission missteps
Oregon’s ethics commission didn’t move quickly to investigate complaints regarding Kitzhaber, and more importantly, his fiancé Cylvia Hayes. At the time, officials said they struggled with whether she was covered by state ethics law.
But the law is clear – Hayes, as a member of Kitzhaber’s household, was subject to the rules. Yet – until ethics reform passed the legislature afterwards – the ethics commission was unprotected from political interference by the governor’s office. The governor either appointed its directors, or gave names to the Democratic-controlled legislature for nomination by party leaders, one possible explanation why the commission didn’t act. Even after reforms, Oregon’s ethics commission still lacks budget protections and the staffing and technical support to see its mission through.
The commission’s lack of rigor hurt most every other category of this assessment.
As the keeper of records designed to collect robust information about the state’s elected officials and civil servants, the commission never audits the asset-disclosure forms it collects, the State Integrity Investigation revealed. Enforcement has been so lax that political leaders have been able to fudge on specifics in their disclosure forms or simply fail to provide significant information. The forms aren’t available online so that members of the public can check. And the State Integrity probe discovered that people who examine the forms universally report that the quality of information is substandard.
Holes in public records law
Such issues underscore why Oregon remains one of the worst performing states regarding access to information (an F grade), ranking tied for 34th even in a category where only six states earned a passing grade. The state has no open data laws or independent agency charged with overseeing citizen access to government. Oregon’s Public Records Law is also full of exemptions – at least 480 – and lacks firm deadlines for delivery of public records. The Kitzhaber debacle underscored the consequences when public information doesn’t flow freely or in a timely way; substantive deadlines might have allowed voters a closer look at Kitzhaber’s issues before he was re-elected, only to resign a month after his swearing-in.
Oregon’s lawmakers (D- in legislative accountability), like the ethics commission, operate without legal safeguards against unethical conduct. The state legislature still does not have laws prohibiting nepotism and cronyism in hiring, for example – a situation intended to allow rural legislators to support a family in the state capital of Salem but that leaves the government vulnerable to abuse. And low pay combines with a lack of campaign finance law to eliminate a buffer between Oregon legislators and special interests in the private sector.
As a result, legislators can grow accustomed to practices that cut corners. They may fudge the lines between their part-time legislative duties and their other jobs, angle for work in places where they shouldn’t or find themselves enormously dependent on campaign contributors as state races get more expensive.
“The problem in our legislature regarding integrity is not about the ethics stuff. Or going to jail. These are intellectual integrity issues…” said Phil Keisling, Director of the Center for Public Service of the Hatfield School of Government at Portland State University.
Few requirements for judges, courts
The judicial branch is also plagued by potential for conflict and a lack of legal safeguards; the category grade for judicial accountability is F. While, again, Oregon judges don’t seem to have overt corruption issues – judges weren’t sanctioned for bad behavior at any point during the study period – staffing shortages prevented many state-level judges from offering full opinions on their rulings. And Oregon lacks laws to force its judges to explain their decisions to the public. The state also lacks judicial performance evaluations, and is behind other states in making court data publicly available. Unless a complaint is filed, the Oregon Commission on Judicial Fitness lacks the power to investigate problems, and even then, those records are sealed unless they lead to discipline.
There were some bright spots: the state’s budgeting process earned a C and the secretary of state’s audits division a C+. Both were sufficiently staffed, transparent, and had the authority to act with independence, suffering only from the same lack of legal safeguards that brought state scores down overall.
And while Oregon’s civil service system scored only a 66 – a D grade – that ranked the state 12th, the highest of all its category rankings. Government workers aren’t always protected from political interference in Oregon, but the civil service system in the Beaver State does seem to be better than most.
Correction, November 10, 2015, 4:15 p.m.: An earlier version of this story incorrectly reported that the ethics commission lacks the authority to independently investigate bad behavior.
Posted on November 10, 2015
Proposed Oregon Administrative Rule (OAR) changes include changes to policies for setting urban growth boundaries (UGBs), charging citizens more for public records, creating a registry for chemicals that are toxic to kids, and adding sexting to the definition of "sexual misconduct" for doctors
Every part of Oregon state government has administrative rules. These rules extend to nearly every aspect of daily lives. They can be critical to you and your family or job in unexpected ways.
Under Oregon's Constitution, the Oregon Legislature passes the state laws that apply in Oregon. (Congress passes federal laws. They apply in Oregon as well, under part of the U.S. Constitution known as the Supremacy Clause, which says that the Constitution, federal laws and treaties take priority over any state's laws if the state law conflicts with the federal law.)
The Legislature compiles its state laws into statutes that are organized according by topic chapters, such as Chapter 90 that deals with the law concerning residential rental properties. The whole collection of state laws, Chapter 1 to Chapter 838, is called the Oregon Revised Statutes.
In Oregon as everywhere else, things are more complicated than statutes can really address properly in detail. As a result, the Legislature directs state agencies to create rules to fill in the details of the framework created by the statutes. Even though these rules are not laws passed by the Legislature, they have the force of law once they are properly issued under the Oregon Administrative Procedures Act. They are published as the Oregon Administrative Rules.
But since state administrative agencies don't operate in public view the way the Legislature does, the Legislature makes agencies submit their proposed new rules and rule changes to the public through what is called a "notice and comment" period -- a period of time when the agency is supposed to seek public comment and consider it before finalizing the rule.
In what will become an occasional feature about these important -- but often overlooked -- rules, OregonPEN is printing some of the most significant rules currently in the notice and comment period, in the hope that greater attention to these rules will help the public and, ultimately, produce better rules.
Excerpted and modified, from - Secretary of State Bulletin - Notice of Proposed Rulemaking
“The Board made the right decision . . . But there is a long way to go just to meet
the level of protections that federal standards require and that Washington State has
had in place for a decade.”-- Bob Van Dyk, Wild Salmon Center
“The decision today is a small step forward, but it falls far short of the improvements
needed to help protect the clean and cool water on which our fisheries depend”
-- Mary Scurlock, Oregon Stream Protection Coalition.
5 November 2015
(Issued by Oregon Stream Protection Coalition)
BOARD OF FORESTRY TAKES SMALL BUT IMPORTANT STEP TO PROTECT
SALMON STREAMS AND COLD WATER
4-3 decision made over objections of timber industry members of the Board
Forest Practices Watchdog tells Forestry Board to require 90' stream buffers to protect fish as streams heat up
BEFORE THE OREGON BOARD OF FORESTRY
• It fails to protect any reaches upstream of salmon, steelhead and bull trout habitat, even though this is a necessary part of the standard itself. Without these reaches, this option fails to meet the standard on this basis alone.
Laboratories of Democracy? Only three states score higher than D+ in State Integrity Investigation; 11 flunk
Reprinted with permission from the Center for Public Integrity
Trouble in America's statehouses: secrecy, questionable ethics and conflicts of interest
By Nicholas Kusnetz
In November 2014, Arkansas voters approved a ballot measure that, among other reforms, barred the state’s elected officials from accepting lobbyists’ gifts. But that hasn’t stopped influence peddlers from continuing to provide meals to lawmakers at the luxurious Capital Hotel or in top Little Rock eateries like the Brave New Restaurant; the prohibition does not apply to “food or drink available at a planned activity to which a specific governmental body is invited,” so lobbyists can buy meals so long as they invite an entire legislative committee.
Such loopholes are a common part of statehouse culture nationwide, according to the 2015 State Integrity Investigation, a data-driven assessment of state government by the Center for Public Integrity and Global Integrity. The comprehensive probe found that in state after state, open records laws are laced with exemptions and part-time legislators and agency officials engage in glaring conflicts of interests and cozy relationships with lobbyists. Meanwhile, feckless, understaffed watchdogs struggle to enforce laws as porous as honeycombs.
Take the Missouri lawmaker who introduced a bill this year — which passed despite a veto by the governor — to prohibit cities from banning plastic bags at grocery stores. The state representative cited concern for shoppers, but he also happens to be state director of the Missouri Grocers Association, and is just one of several lawmakers in the state who pushed bills that synced with their private interests.
Or the lobbyist who, despite a $50 cap on gifts to Idaho state lawmakers, spent $2,250 in 2013 to host a state senator and his wife at the annual Governors Cup charity golf tournament in Sun Valley; the prohibition does not apply to such lobbying largess as long as the money is not spent “in return for action” on a particular bill.
In Delaware, the Public Integrity Commission, which oversees lobbying and ethics laws for the executive branch there, has just two full-time employees. A 2013 report by a special state prosecutor found that the agency was unable “to undertake any serious inquiry or investigation into potential wrongdoing.”
And in New Mexico, lawmakers passed a resolution in 2013 declaring that their emails are exempt from public records laws — a rule change that did not require the governor’s signature. “I think it’s up to me to decide if you can have my record,” one representative said.
These are among the practices illuminated by the State Integrity Investigation, which measured hundreds of variables to compile transparency and accountability grades for all 50 states. The results are nothing short of stunning. The best grade in the nation, which went to Alaska, is just a C. Only two others earned better than a D+; 11 states received failing grades. The findings may be deflating to the two-thirds of Americans who, according to a recent poll, now look to the states for policy solutions as gridlock and partisanship have overtaken Washington D.C.
The top of the pack includes bastions of progressive government, including California (ranked 2nd with a C-), and states notorious for corrupt pasts (Connecticut, 3rd with a C-, and Rhode Island, 5th with a D+). In those New England states, scandals led to significant reforms and relatively robust ethics laws, even if dubious dealings linger in the halls of government. The bottom includes many western states that champion limited government, like Nevada, South Dakota and Wyoming, but also others, such as Maine, Delaware and dead-last Michigan, that have not adopted the types of ethics and open records laws common in many other states.
The results are “disappointing but not surprising,” said Paula A. Franzese, an expert in state and local government ethics at Seton Hall University School of Law and former chairwoman of the New Jersey State Ethics Commission. Franzese said that, with many states still struggling financially, ethics oversight in particular is among the last issues to receive funding. “It’s not the sort of issue that commands voters,” she said.
With a few notable exceptions, there has been little progress on these issues since the State Integrity Investigation was first carried out, in 2012. In fact, most scores have dropped since then, though some of that is due to changes made to improve and update the project and its methodology.
Since State Integrity’s first go-round, at least 12 states have seen their legislative leaders or top cabinet-level officials charged, convicted or resign as a result of ethics or corruption-related scandal. Five house or assembly leaders have fallen. No state has outdone New York, where 14 lawmakers have left office since the beginning of 2012 due to ethical or criminal issues, according to a count by Citizens Union, an advocacy group. That does not include the former leaders of both the Assembly and the Senate, who were charged in unrelated corruption schemes earlier this year but remain in office.
New York is not remarkable, however, in at least one regard: Only one of those 14 lawmakers has been sanctioned by the state’s ethics commission.
Grading the states
When first conducted in 2011-2012, the State Integrity Investigation was an unprecedented look at the systems that state governments use to prevent corruption and expose it when it does occur. Unlike many other examinations of the issue, the project does not attempt to measure corruption itself.
The 2015 grades are based on 245 questions that ask about key indicators of transparency and accountability, looking not only at what the laws say, but also how well they’re enforced or implemented. The “indicators” are divided into 13 categories: public access to information, political financing, electoral oversight, executive accountability, legislative accountability, judicial accountability, state budget processes, state civil service management, procurement, internal auditing, lobbying disclosure, state pension fund management and ethics enforcement agencies.
Experienced journalists in each state undertook exhaustive research and reporting to score each of the questions, which ask, for example, whether lawmakers are required to file financial interest disclosures, and also whether they are complete and detailed. The results are both intuitive — an F for New York’s “three men in a room” budget process — and surprising — Illinois earned the best grade in the nation for its procurement practices. All together, the project presents a comprehensive look at transparency, accountability and ethics in state government. It’s not a pretty picture.
“Across the board, accessing government has always been, but is increasingly, a barrier to people from every reform angle.”
- Jenny Rose Flanagan, vice president at Common Cause
Downward trend, blips of daylight
Overall, states scored notably worse in this second round. Some of that decline is because of changes to the project, such as the addition of questions asking about “open data” policies, which call on governments to publish information online in formats that are easy to download and analyze. But the drop also reflects moves toward greater secrecy in some states.
“Across the board, accessing government has always been, but is increasingly, a barrier to people from every reform angle,” said Jenny Rose Flanagan, vice president for state operations at Common Cause, a national advocacy group with chapters in most states.
No state saw its score fall farther than New Jersey, where scandal after scandal seems to have sunk Gov. Chris Christie’s presidential aspirations deep into the muck of the state’s brawling, back-scratching political history. New Jersey earned a B+, the best score in the nation, in 2012 — shocking just about anyone familiar with the state’s politics — thanks to tough ethics and anti-corruption laws that had been passed over the previous decade in response to a series of scandals.
None of that has changed. But journalists, advocates and academics have accused the Christie administration of fighting and delaying potentially damaging public records requests and meddling in the affairs of the State Ethics Commission. That’s on top of Bridgegate, the sprawling scandal that began as a traffic jam on the George Washington Bridge but has led to the indictments so far of one of the governor’s aides and two of his appointees — one of whom pleaded guilty to conspiracy charges — and even to the resignations of top executives at United Airlines. As a result of these scandals and others, New Jersey dropped to 19th place overall with a D grade.
Admittedly, it’s not all doom and gloom. Iowa created an independent board with authority to mediate disputes when agencies reject public records requests. Gov. Terry Branstad cited the state’s previous grade from the Center when he signed the bill, and the move helped catapult Iowa to first in the nation in the category for access to information, with a C- grade (Iowa’s overall score actually dropped modestly).
In Georgia, good government groups latched on to the state’s worst-in-the-nation rank in 2012 to amplify their ongoing push for reforms. The result was a modest law the following year that created a $75 cap on the value of lobbyists’ gifts to public officials. The change helped boost the state’s score in the category of legislative accountability to a C-, sixth-best in the nation.
Perhaps the most dramatic reforms came in Virginia, where scandal engulfed the administration of outgoing Gov. Robert McDonnell in 2013 after it emerged that he and his family had accepted more than $170,000 in loans and gifts, much of it undisclosed, from a Virginia businessman. McDonnell and his wife were later convicted on federal corruption charges, but the case underscored the state’s woefully lax ethics laws and oversight regime; Virginia received an overall F grade in 2012. At the time, there was no limit on the value of gifts that public officials could accept, and they were not required to disclose gifts to their immediate family, a clause that McDonnell grasped at to argue that he had complied with state laws. (Appeals of the McDonnells’ convictions are pending.)
Over the next two years, newly-elected Gov. Terry McAuliffe and lawmakers passed a series of executive actions and laws that eventually led, in 2015, to a $100 cap on gifts to public officials from lobbyists and people seeking state business. They also created an ethics council that will advise lawmakers but will not have the power to issue sanctions. Advocates for ethics reform have said the changes, while significant, fall far short of what’s needed, particularly the creation of an ethics commission with enforcement powers. Still, they helped push the state's grade up to a D.
States also continued to score relatively well in the categories for auditing practices — 29 earned B- or better — and for budget transparency — 16 got a B- or above (the category measures whether the budget process is transparent, with sufficient checks and balances, not whether it’s well managed).
In Idaho, for example, which earned an A and the second best score for its budget process, the public is free to watch the Legislature’s joint budget committee meetings. Those not able to make it to Boise can watch by streaming video. Citizens can provide input during hearings and can view the full budget bill online.
New York earned the top score for its auditing practices — a B+ — because of its robustly-funded state comptroller’s office, which is headed by an elected official who is largely protected from interference by the governor or Legislature. The office issues an annual report, which is publicly available, and has shown little hesitation to go after state agencies, such as in a recent audit that identified $500 million in waste in the state’s Medicaid program.
Unfortunately, however, such bright spots are the exceptions.
In 2013, George LeVines submitted a request for records to the Massachusetts State Police, asking for controlled substance seizure reports at state prisons dating back seven years. LeVines, who at the time was assistant editor at Muckrock, a news website and records-request repository, soon received a response from the agency saying he could have copies of the reports, but they would cost him $130,000. While LeVines is quick to admit that his request was extremely broad, the figure shocked him nonetheless.
“I wouldn’t have ever expected getting that just scot-free, that does cost money,” he said. But $130,000? “It’s insane.”
The cost was prohibitive, and LeVines withdrew his request. The Massachusetts State Police has become a notorious steel trap of information — it's charged tens of thousands of dollars or even, in one case, $2.7 million to produce documents — and was awarded this year with the tongue-in-cheek Golden Padlock award by a national journalism organization, which each year “honors” an agency or public official for its “abiding commitment to secrecy and impressive skill in information suppression.”
Dave Procopio, a spokesman for the State Police, said in an email that the department is committed to transparency, but that its records are laced with sensitive information that's exempt from disclosure and that reviewing the material is time consuming and expensive. "While we most certainly agree that the public has a right to information not legally exempt from disclosure,” he wrote, “we will not cut corners for the purpose of expediency or economy if doing so means that private personal, medi[c]al, or criminal history information is inappropriately released.”
It’s not just the police. Both the Legislature and the judicial branch are at least partly exempt from Massachusetts’ public records law. Governors have cited a state Supreme Court ruling to argue that they, too, are exempt, though chief executives often comply with requests anyway. A review by The Boston Globe found that the secretary of state’s office, the first line of appeal for rejected requests, had ruled in favor of those seeking records in only 1-in-5 cases. Needless to say, Massachusetts earned an F in the category for public access to information. But so did 43 other states, making this the worst performing category in the State Integrity Investigation.
While every state in the nation has open records and meetings laws, they’re typically shot through with holes and exemptions and usually have essentially no enforcement mechanisms, beyond the court system, when agencies refuse to comply. In most states, at least one entire branch of government or agency claims exemptions from the laws. Many agencies routinely fail to explain why they they’ve denied requests. Public officials charge excessive fees to discourage requestors. In the vast majority of states, citizens are unable to quickly and affordably resolve appeals when their records are denied. Only one state — Missouri — received a perfect score on a question asking whether citizens actually receive responses to their requests swiftly and at reasonable cost.
“We’re seeing increased secrecy throughout the country at the state and federal level,” said David Cuillier, director of the University of Arizona’s School of Journalism and an expert on open records laws. He said substantial research shows that the nation’s open records laws have been poked and prodded to include a sprawling list of exemptions and impediments, and that public officials increasingly use those statutes to deny access to records. “It’s getting worse every year,” he said.
After a series of shootings by police officers in New Mexico, the Santa Fe New Mexican published a report about controversial changes made to the state-run training academy. But when a reporter requested copies of the new curriculum, the program’s director refused, saying “I’ll burn them before you get them.”
In January, The Wichita Eagle reported that Kansas Gov. Sam Brownback’s budget director had used his private email address to send details of a proposed budget to the private email accounts of fellow staff members, and also to a pair of lobbyists. He later said he did so only because he and the rest of the staff were home for the holidays. But in May, Brownback acknowledged that he, too, used a private email account to communicate with staff, meaning his correspondence was not subject to the state’s public records laws. A state council is now studying how to close the loophole. A series of court cases in California are examining a similar question there.
Cuillier said in most states, courts or others have determined that discussions of public business are subject to disclosure, no matter whether the email or phone used was public or private. But the debate is indicative of a larger problem, and it reveals public records laws as the crazy old uncle of government statutes: toothless, antiquated appendages of a bygone era.
Weak ethics oversight
Governments write ethics laws for a reason, presumably. Public officials can’t always be trusted to do the right thing; we need laws to make sure they do. The trouble is, a law is only as good as its enforcement, and the entities responsible for overseeing ethics are often impotent and ineffective.
In many states, a complex mix of legislative committees, stand-alone commissions and law enforcement agencies police the ethics laws. And more often than not, the State Integrity Investigation shows, those entities are underfunded, subject to political interference or are simply unable or unwilling to initiate investigations and issue sanctions when rules are broken. Or at least that’s as far as the public can tell: many of these bodies operate largely in secret.
The Tennessee Ethics Commission, for example, rose in 2006 out of the ashes of an FBI bribery probe that had burned four state lawmakers. In its decade of operation, the commission has never issued a penalty as a result of an ethics complaint against a public official (it did issue one to a lobbyist). That may seem surprising, but the dearth of actions is impossible to assess because the complaints become public only if four of six commissioners decide they warrant investigation. Of 17 complaints received in 2013 and 2014, only two are public.
“There just haven’t been that many valid complaints alleging wrongdoing,” said Drew Rawlins, executive director of the Bureau of Ethics and Campaign Finance, which includes the commission.
In 2013, in a case that did become public, the commission decided against issuing a fine to a powerful lobbyist and former adviser to Gov. Bill Haslam who had failed to disclose that he’d lobbied on behalf of a mining company that was seeking a state contract. The lobbyist had maintained that his failure was simply an oversight, and only one commissioner voted to issue a penalty.
In Kansas, staff shortages mean the state’s Governmental Ethics Commission is unable to fully audit lawmakers’ financial disclosures, according to Executive Director Carol Williams. “We would love to be able to do more comprehensive audits,” Williams told the investigation’s Kansas reporter. Instead, she said, all her staff can do is make sure officials are filling out the forms. “Whether they are correct or not, we don't know.” Only two states initiate comprehensive, independent audits of lawmakers’ asset disclosures on an annual basis.
The State Integrity Investigation found that in two-thirds of all states, ethics agencies or committees routinely fail to initiate investigations or impose sanctions when necessary, often because they’re unable to do so without first receiving a complaint.
“Many of these laws are out of date. They need to be revised,” said Robert Stern, who spent decades as president of the Center for Governmental Studies, which worked with local and state governments to improve ethics, campaign finance and lobbying laws until it shut in 2011. Stern, who is currently helping to write a ballot initiative that would update California’s ethics statutes, said that while he thinks the State Integrity Investigation grades are unrealistically harsh, they do reflect the fact that state lawmakers have neglected their responsibilities when it comes to ethics and transparency. “It’s very, very difficult for legislatures to focus on these things and improve them because they don’t want these laws, they don’t want to enforce them, and they don’t want to fund the people enforcing them.”
In 3-in-5 states, the project found, ethics entities are inadequately funded, causing staff to be overloaded with work and, occasionally, forcing them to delay investigations.
The Oklahoma Ethics Commission is charged with overseeing ethics laws for the executive and legislative branches, lobbying activity and campaign finance. This year, the commission operated on a budget of $1 million. In 2014, the nonprofit news site Oklahoma Watch reported that the commission had collected only 40 percent of all the late-filing penalties it had assessed to candidates, committees and other groups since it was created in 1990. Part of that failure was the result of a challenge to the commission’s rules, but Executive Director Lee Slater said that much of it was simply due to a lack of resources.
“Until about a month ago, we had five employees in this office,” Slater said. “We’ve now got six. Try to do it with six employees.” Slater said the commission this year began collecting all fees it is owed, thanks to the sixth employee — whose salary is financed with fees — and new rules that clarify its authority. But he said the agency simply does not have enough money to do what it ought to. “I’m not going to sit here and tell you that we do everything we should,” he said. “But I will tell you that we do the best that we can, whatever that is.”
Slater said he’s been told to expect a cut of between 5 and 20 percent to the commission’s appropriations next year ($775,000 of the commission’s current budget comes from appropriations).
Oklahoma is hardly an outlier. “They don’t have the resources,” Stern said, speaking of similar agencies across the country. “That’s the problem.”
New frontier points to old problem
Not long ago, journalists and citizen watchdogs were thrilled to get access to any type of information online. But standards have changed quickly, and many have come to expect government to not just publish data online, but to do so in “open data” formats that allow users to download and analyze the information.
"By making data available digitally, it can be more easily reused and repurposed,” said John Wonderlich, policy director at the Sunlight Foundation, an advocacy group. (Global Integrity consulted with the Sunlight Foundation when writing the open data questions for this project).
Only nine states have adopted open data measures, according to the Sunlight Foundation, some of which do little more than create an advisory panel to study the issue.
The 2015 State Integrity Investigation included questions in each category asking whether governments are meeting open data principles. Almost universally, the answer was no. More than anything, these scores were responsible for dragging down the grades since the first round of the project.
While open data principles are relatively new, the poor performance on these questions is indicative of the project’s findings as a whole. “If we really wanted to do it right we’d just scrap it all and start from scratch,” said Cuillier, of the University of Arizona, speaking of the broken state of open records and accessibility laws. That clearly is not going to happen, he said, so instead, “we’re going to continue to have laws that are archaic and tinkered with, and usually in the wrong direction.”
This article draws on reporting from State Integrity Investigation reporters in all 50 states.
By Lisa Nuss, OregonPEN
The agency charged with licensing Oregon’s teachers has appeared to violate Oregon’s public meetings law by holding a private executive session without proper authority. The Teacher Standards and Practices Commission (TSPC) is a 17-member body comprised of educators who are appointed by the Governor to oversee the licensing and discipline of Oregon’s more than 28,000 public teachers who teach in kindergartens through high schools (K-12).
At its June 2015 quarterly meeting, the TSPC Executive Director, Vickie Chamberlain, waited until the commission was in a non-public executive session to reveal a $91,000 settlement of a lawsuit by a former employee, Kathy Rogers, that named both the agency and Chamberlain herself as defendants. The lawsuit alleged that Chamberlain and her deputy, Keith Menk, violated several state employment laws by firing Rogers, a TSPC employee, while she was on an extended medical leave, which occurred after she helped unionize the TSPC staff. The Oregon Department of Justice (DOJ) attorney who defended the case, Marc Abrams, revealed to the commissioners that, before she was fired, Rogers' competence was never in question.
Before filing her suit, Rogers first filed a claim with the Oregon Bureau of Labor & Industries (BOLI). BOLI investigated and determined that there was substantial evidence that Chamberlain and Menk violated several state employment laws in dealing with Rogers. In its June 2013 findings, BOLI concluded that Chamberlain and Menk made inexplicable demands on Rogers to substantiate her need for medical leave (among other findings). The two rejected a letter from Roger’s doctor that in which the physician found that Rogers needed a modified work schedule; Chamberlain and Menk insisted that Rogers obtain and submit letters from multiple additional doctors. BOLI concluded that Chamberlain and Menk “did not make clear at any point why [her] submitted documentation was insufficient.” BOLI went on to find substantial evidence that TSPC had failed to make required accommodations when it eventually fired Rogers. Rogers then filed a lawsuit (Kathy Rogers v. State of Oregon, TSPC, Vickie Chamberlain, and Keith Menk).
After more than a year of litigation and multiple failed attempts by DOJ to get the case dismissed, Rogers’s suit was proceeding through discovery when the two sides reached a settlement agreement in early June 2015.
Public Meetings Law Favors Transparency
Oregon’s public meetings law is intended to ensure, among other things, that the meetings of governing bodies, at which decisions about the public’s business are made or discussed, are open to the public. The Attorney General’s website states that, “Put simply, these laws establish a general expectation that Oregon’s government will be transparent to its people.”
The Public Meetings Law does let agencies meet privately in “executive sessions” when certain specific topics are to be discussed by the agency leadership. However, Oregon law is clear that these exceptions are to be construed narrowly and that doubtful cases are to be resolved in favor of transparency and public disclosure. The law allows executive sessions to include discussion of ongoing litigation – suits that have not been settled, so that the policy makers can have the privacy needed to discuss the agency’s legal strategy. But the law also states explicitly that the exception applies only to ongoing litigation: once there is a settlement and a lawsuit is concluded, the settlement is a matter of public record and discussion of the matter must be public as well.
The settlement of the Rogers case includes a cash payout by the State of Oregon of $91,000. Fifty-thousand will be paid by state self-insurance funds and the balance, over $40,000, equal to a year of back salary for the employee, will be paid from teacher’s licensing fees from the TSPC budget. During her tenure and up through her recent resignation, Chamberlain has often told legislators that the TSPC is underfunded. But because of the agency's actions against Rogers, TSPC must now pay a year’s salary to an employee no longer working for TSPC.
Oregon's Public Meetings Law requires that matters of public interest such as this be presented at agency public meetings so that stakeholders can hear the commission’s discussions and pose questions.
It appears that the agency leaders and legal staff were determined to prevent anyone outside the agency from even hearing about, much less understanding what transpired. Oregon’s open meetings laws forbid agencies from burying their misdeeds.
Neither Agency nor DOJ Offer Justification for Hiding the Disclosure from the Public
After OregonPEN made a public records request, TSPC turned over the audio from the June 2015 Executive Session. The audio reveals that once commission members were gathered in the executive session and the public excluded, Chamberlain introduced the topic of the settlement with Rogers. Chamberlain had arranged for the DOJ attorney, Abrams, to join the session via a conference call. He then explained the outcome to the commission. There is no mention of the Rogers settlement on the June TSPC agenda for the meeting, although the lawsuit had been settled a few weeks earlier, well before the commission agenda was posted.
OregonPEN brought the apparent Public Meetings Law violation to the attention of both the TSPC and the DOJ. No one connected with TSPC or the Office of the Attorney General has attempted to justify or excuse withholding the disclosure of the settlement from the public. (The Public Meetings Law allows media representatives to attend executive sessions, but there is no record that any media representatives were at this commission meeting, perhaps because the Rogers settlement did not appear on the agenda.)
OregonPEN emailed Chamberlain to ask
“Does TSPC assert it had any authority under Open Meetings law to hide the settlement discussion from the public who attended the meeting and discuss it only in a closed Executive Session?”
Ms. Chamberlain emailed this response to OregonPEN’s Lisa Nuss on 10/7:
Ms. Nuss: Comments about the legality of actions is the province of the Department of Justice and I will not comment further.
Victoria (Vickie) Bianes Chamberlain, JD”
OregonPEN has since learned that the TSPC’s regular DOJ counsel, attorney Raul Ramirez, attended the executive session. OregonPEN asked DOJ Ramirez this question via email,
“Is it correct that you are the DOJ attorney advising TSPC at its commission meetings, and is it correct you attended the Executive Session meeting where Ms. Chamberlain asked Marc Abrams to call in to discuss the Rogers settlement?
Please let us know under what authority that discussion was taken into Executive Session and kept from the public record.”
DOJ Ramirez emailed this response to OregonPEN reporter Lisa Nuss on 10/9:
Re: TSPC violation of Open Meetings law
Ramirez Raul (email@example.com)
Dear Ms. Nuss:
Thank you for your email of October 7, 2015. I am assigned counsel to the
Teacher Standards and Practices Commission (TSPC). Your email asks us
to comment on the authority and legality of a TSPC meeting. Please note
that the Office of the Attorney General is prohibited by statute from
providing legal advice or representation to any person other than the
State of Oregon, acting through its agencies, boards, commissions,
officials an the like. Please refer to ORS Chapter 180. Consequently,
we are unable to comment regarding your questions.
Assistant Attorney General | Business Activities Section | General Counsel Division
Oregon Department of Justice”
Several days before deadline, OregonPEN emailed a second request to Ramirez asking him to confirm or deny his presence at the June executive session where the apparent open meetings act violation occurred. . After four days, he has still not responded. Additionally, neither TSPC Commission Chair Heidi Sipe nor DOJ attorney Marc Abrams responded to our emails asking for justification for withholding the revealing of the settlement from public session.
Strong evidence points to deliberate violation
By moving a discussion about a matter of public interest to executive session where the public was excluded, the TSPC appears to have violated ORS 192.660 (Executive sessions permitted on certain matters). The Oregon Government Ethics Commission is charged with investigating violations of the Public Meetings Law, and civil penalties can be imposed.
While it is possible that the violation of the open meetings law was inadvertent, many facts point to orchestration here; when added up, mere oversight seems improbable.
First, the June TSPC Commission meeting was run according to the usual schedule for a quarterly commission meeting, with one day devoted to general business before the agency and licensing matters and the next day devoted to decisions on specific disciplinary actions against teachers. Most members of the public and educators who attend the meetings attend only on the day where general business and teacher licensing matters are discussed.
Judging by public interest, the Rogers settlement should have been announced on the first day of the June commission meeting, when general business is discussed and when the agency’s stakeholders were most likely to be present. Instead, TSPC Executive Director Chamberlain appears to have used her control of the agenda to move the discussion of the Rogers’ suit settlement to the day primarily devoted to disciplinary issues against specific teachers; typically only the teachers involved and their lawyers would be present instead of the public. Even still, the Rogers settlement discussion was only addressed in a closed-door meeting, despite the mandate of the Public Meetings Law.
Chamberlain arranged for the call from DOJ Marc Abrams, to brief the commission members on the settlement, ahead of time -- as evidenced in the audio recording that OregonPEN obtained.
Second, OregonPEN has earlier reported that the DOJ initially withheld the fact that the agency paid out $91,000 to settle the Rogers suit when first contacted by OregonPEN. In that first contact, in response to the inquiry from OregonPEN asking about the outcome of the Rogers lawsuit, the Attorney General’s office emailed OregonPEN to say that the lawsuit was settled “amicably” and the TSPC would be providing a recommendation for the employee; that response left out any mention of the $91,000 payout by the State of Oregon, with a significant share coming from teacher licensing fees.
That omission, combined with the failure to comply with the Public Meetings Law when announcing the Rogers settlement in a non-public meeting, would likely have been sufficient to ensure that no ordinary Oregonian ever learned about the lawsuit. If OregonPEN hadn’t pursued the matter, issued a public records request for the settlement document and asked for the audio recording of the executive session, the public and Oregon taxpayers would be ignorant of the fact that over $90,000 in public funds are being paid out because of improper conduct by TSPC leadership. That figure does not include the litigation costs for DOJ to litigate the case for over a year.
Two DOJ attorneys were present (Ramirez in person and Abrams by phone) at the June executive session. The Attorney General’s manual on Oregon public meetings laws clarifies that public meetings law parallels public records law. Any exemption for private discussion an agency has with its attorneys only applies to ongoing litigation and not to litigation that has been concluded. The manual states that outside of confidential matters such as ongoing litigation or disciplinary actions against certain individuals, “other discussions with counsel generally must be held in open session.”
The DOJ attorneys do a dis-service to the agency they are bound to advise if they mislead the commissioners into thinking that this very public matter is private and if they mislead commissioners into thinking they are not to be discussing this important matter with any members of the public or even their own stakeholders from the education community.
Third, the audio of the discussion of the lawsuit settlement reveals that DOJ Abrams made several disparaging comments about Rogers, the employee who brought the lawsuit. OregonPEN contacted an experienced labor lawyer who suggested that technically such disparagement by the State of Oregon does not violate the lawsuit settlement agreement because that agreement did not contain a general non-disparagement clause. The settlement only states that the State of Oregon will pay the employee one year’s back salary and provide a letter of recommendation..
DOJ Abrams also assured the commission that "we at DOJ" and the state Department of Administrative Services all believe that TSPC Executive Director Chamberlain and Deputy Director Menk did nothing wrong. Abrams told the commissioners, "We do not believe there were any improprieties in this matter," and later, "I do not believe there was wrongdoing." Meanwhile, Abrams portrayed Rogers to the commission members as a plaintiff who was simply making unreasonable demands for outrageous sums of money. DOJ Abrams assured the commissioners that the State of Oregon settled only to avoid the costs of trial, and suggested to commissioners that TSPC should consider itself pleased with the outcome. These statements appear to lack foundation, especially given the BOLI findings substantiating many of the facts behind Rogers’ claims.
OregonPEN has talked to eight current and former TSPC employees. When asked about this lawsuit, each one of them said, “It’s the same way they treated …” and they listed four or five names of former TSPC staff who they believe were illegally fired by Chamberlain and Menck under nearly identical fact patterns as in the Rogers case (the pattern being: No prior negative reviews, no prior discipline problems, sudden and unexplained reassignment of duties, and then sudden firing).
OregonPEN has spoken with two former TSPC employees that Chamberlain fired; both then fought to get unemployment benefits over Chamberlain’s objections. Both staff say Ms. Chamberlain manufactured a long list of alleged improprieties after she fired them in an attempt to deny them unemployment benefits, In both cases, the Oregon Employment Department ruled against TSPC and found no evidence the employees were fired for willful misconduct, as alleged by Ms. Chamberlain; after investigations and hearings, both former employees were found eligible for unemployment benefits. One woman, whom she and other staff members say was fired under a similar scenario as Rogers, gave OregonPEN a letter from the Oregon Employment Department about her appeal for benefits. The letter stated that TSPC failed to “provide any prior specific warning” about any problems to the employee prior to the firing nor did TSPC provide “recent evidence of wrongdoing” that substantiated the firing.
Seven of the current and former TSPC staff members that OregonPEN talked to explained this string of unsubstantiated firings in terms that were nearly identical. Although OregonPEN talked to the current and former employees at different times over a span of several months, each explained the unsubstantiated firings in a variation of this answer "When Vickie wants someone gone, they're gone. Usually it's because they stood up to her."
In light of these facts, the personal assurance by a DOJ attorney made behind closed doors to TSPC Commissioners that neither the DOJ nor DAS believe the commissioners have any need to evaluate how the agency's Executive Director or Deputy Director deal with employees appears quite calculated.
HB 2968 (2015) Poverty Workgroup
FOUNDATIONAL INFORMATION AND OREGON CONTEXT
House Bill 2968 (2015) directs the Oregon Chief Education Officer to convene a work group with the specific charge to prepare a report on how State School Fund expenditures relate to the educational achievements of students from families navigating poverty. The report is to be delivered to an interim Committee of the Legislature by November 15, 2015. The report may include recommendations for Legislation.
The Work Group was asked to examine a large amount of information, including Federal, State, and local funding in general and the poverty weight that is used for State School Fund (SSF) distributions in particular. The Oregon Department of Education, which administers Federal and State programs and distributes the SSF will present this information to the Work Group on October 1, 2015.
In advance of the October 1 meeting, this document is designed to give work group members a common understanding of the most current facts about poverty in Oregon, a survey and analysis of the barriers associated with increasing academic achievement for students navigating poverty, and an identification of services beyond education that already exist. This report has been extensively researched and those sources cited to allow readers to delve more deeply into any of the topics.
In the State of Oregon there is a total population of 3,970,239 with about 1.2 million youth ages 0-24 (United States Census Bureau, 2012). There were 570,857 students enrolled in K-12 public schools in the 2014-15 school year. Within Oregon students of color represent 36% of the student population, with the fastest growing group of students of color being Hispanic/Latino students, who represent 22% of the overall student population (OEIB, 2015).
Oregon has an unemployment rate of 5.3%, a food insecurity rate of 15.8%, and despite the talents and promise students bring to schools every day, Oregon has an overall graduation rate of 71.98%, one of the lowest in the country. Moreover, a recent longitudinal study indicates that only 34% of students in poverty in Oregon; 11.5% of Hispanic/Latino students; 15.1% of African American students; and 13.7% of Native American students earn a post-secondary credential by the age of 25 (OregonLearns, n.d.).
Poverty Statistics in Oregon
In 2014, 25% (1 in 4) children live in poverty, an increase of 30% since 2008
Children First for Oregon. 2014
Over half (53%) of children whose parents do not have a high school degree live in poor families • Over a quarter (27%) of children in poor families do not have an employed parent
Oregon data from National Center for Children in Poverty, 2013
18% families with children under the age of 18 currently live in poverty • For families navigating below the poverty level: - 29% of have a head of household with less than a high school education - 22% of families there is no wage earner
Oregon data from United States Census Bureau, 2012
Poverty rates in the rural regions are higher than urban areas • Residents in rural areas are associated with having less educational attainment, lower incomes, and higher unemployment rates
Oregon data from U.S. Dept. of Agriculture, Economic Research Service, 2013
For detailed information on statewide poverty rates by county broken down by racial/ethnic categories see Appendix A.
Miller, Mastuera, Chao, and Sadowski (2004) identify six elements of self-sufficiency required to make, what is often characterized as “deep and wide,” steps out of poverty. We have organized the barriers with these element headings.
1. Income and Economic Assets
Individuals with a high school diploma and no postsecondary degrees or certificates earn a median monthly salary of $2,636, which covers basic costs of raising children: transportation ($459), child care ($1,181), food ($546), and housing ($692); and excludes healthcare ($1,279) and taxes and other necessities ($732) (The Annie E. Casey Foundation [AECF], 2014).
In addition to difficulties meeting the basic costs of living, families face job-related barriers like inflexible schedules, low wages, and minimal or no benefits. The barriers associated with working these types of jobs often directly impact employment options. For example, lack of transportation or health benefits for children were found to be primary reasons for some mothers not completing welfare-to-work programs (Pierre, Layzer, & Barnes, 1995). Families navigating poverty may even have work multiple lowpaying jobs in order to meet all of their financial needs (Krahn, 1991).
Many families, particularly those with children age 5 or younger had to change, quit, or refuse a job offer due to child care problems (as cited in AECF, 2014). They also face other various child care related barriers:
Barriers for Adults
Barriers for Children
ASSET BASED PERSPECTIVE
The Chief Education Office has adopted an asset-based perspective to thinking, writing, and talking about all students, families, and communities across the educational continuum. This is in contrast to a more typical deficit-based perspective often used with good intention to group students for the purposes of reporting, requesting resources or conducting analysis. Deficit thinking is the practice of having lower expectations for certain groups of people based on demographics or characteristics that they share. In doing so, an "at-risk" narrative is formed, in which students navigating poverty, students of color, and/or historically underserved groups and their families are pathologized and marginalized. An asset-based paradigm means recognizing and amplifying the strengths each person brings to the community and not associating systemic barriers with the students and families. In researching and then communicating in this document the topic of poverty, we have encountered a range of terminology that fall on the spectrum of more asset or deficit based thinking. For example, the term “poor students” fits within our definition of a deficit-based construct. Our preferred term is “students navigating poverty” and our perspective on this is that all students are rich with assets and potential, regardless of their current economic circumstances. Where appropriate, we have footnoted particularly illustrative examples of language used in research that is more deficit based and our suggestions about alternative ways of looking at and communicating about the subject.
(ACEF, 2013; Reardon, 2011). This gap continues in the later years, where students navigating poverty continue to lag behind their peers academically and developmentally (AECF, 2013).
3. Housing and Surroundings
4. Access to Health Care and Other Needed Social Services
Health and Mental Care
Positive/Short-lived -- Example: Stress experienced on the first day of school Helps a child develop coping skills and a healthy stress response system.
Tolerable/More serious -- Example: When a loved one dies Not damaging if a child has the buffering support of protective, adult relationships.
Toxic -- Lasts longer Occurs in the absence of consistent supportive relationships Potentially lead to long-term problems in learning, behavior, and both physical and mental health
Compared to children from families with higher income, children from families navigating poverty are more likely to experience toxic stress (Duncan & Magnuson, 2011) and experience developmental delays (as cited in Shonkoff, 2013).
Other Social Services – Child development
Families navigating poverty may have restricted resources to supplement their children’s schooling with educational materials (e.g. books, toys, and computers), services (e.g. tutor, therapists), and enrichment-type educational experience (e.g. museums, theaters, sports, summer camp)(Haveman & Wolfe, 1994). Such experiences are expensive, costing about $10,000 per child per year, on average, for families with incomes above $135,000 (Duncan & Munane, 2011).
There is a lasting effect of poverty: children raised in families navigating poverty are more likely to continue to navigate poverty when they become adults (Corcoran, 1995), and this likelihood increases as the duration of poverty lengthens (Wagmiller & Adelman, 2009). This group of children was also more likely to experience multiple family transitions, move regularly, and change schools more frequently (Teachman, 2008). These create barriers like academic regression and discontinuity in curriculum and loss of social networks.
5. Close Personal Ties, as well as Networks to Others
The stress related to facing constant economic insecurity for families navigating poverty could be alleviated when parents have strong support networks of family or friends to help (AECF, 2014). Individuals who are socially isolated are more likely to be navigating poverty than individuals with larger circles of friends (Finney, Kapadia & Peters, 2015).
Mothers with low levels of emotional (e.g., access to family/friends to talk to during troubling times) and instrumental (e.g., access to family/friends for rides to the doctor) support
a) Had lower levels of literacy and had a lower rate of high school completion;
b) Demonstrated significantly less warmth and provided less stimulating learning environments than mothers with higher levels of support; and
c) Received welfare services long-term (Fram, 2003).
6. Personal Resourcefulness and Leadership Abilities
A major barrier is the limitation in the focus of federal programs. There are many federal programs designed to assist families navigating poverty, including those that provide assistance by subsidizing basics such as food, health care, housing and child care, and those that provide added income, such as the Earned Income Tax Credit (EITC) to compensate for low wages and irregular employment (Boots, 2010). Although such programs help to some degree, they are limited in their effectiveness because these programs often only focused on either children or parents, and not both (Ascend, 2014). This creates a particular barrier for parents who wish to advance in their work place because they do not have the flexibility in their schedules.
Further, families often lack information of the full range of programs that could benefit them and their children (Boots, 2010). They need access to the supports that would help them advocate for their family. They experience difficulties navigating the complexities varying agency authorities, eligibility criteria, and program requirements at the federal, state or local level (Boots, 2010). Strict eligibility criteria for some of the programs put families at risk for losing the services or benefits they most need while working towards financial stability (de Cuba, Harker, Weiss, Scully, Chilton, & Coleman, 2013).
CURRENT PROGRAMS AND SERVICES
The common barriers faced by families navigating poverty described above touch many aspects of families’ lives, and are often addressed by state, federal and local programs outside of the education system. Thus, the complexity of the issues families in poverty face provided the impetus for gathering information regarding what current programs and services exist outside of the education system to provide these supports. We conducted our own searches, and worked with other state-level agency representatives (Department of Human Services, Oregon Health Authority, etc.) and local regional groups in order to identify some of the major programs and services. These inquiries led to the identification of over 100 types of programs and services fulfilling different family needs. Table 1 below provides a summary list of some of the major state and federal programs serving families navigating poverty.
Table 1. Major State/Federal Poverty Programs and Services
Programs/Level/Population Served/Svc Provided/Description of Organization/Hyperlink to Site
DHS (Oregon Department of Human Services/State/Family Unit/Many
DHS provides direct services to more than 1 million Oregonians each year. These services provide a key safety net for those in our society who are most vulnerable or who are at a difficult place in their life
211Info/State/Family Unit/Information on Services
Accessible by phone and email only, 211info directs people to services in OR that assist families navigating poverty. Major themes of these services include assistance with family, food, emergency, energy, and housing.
Community Developmental Disabilities Program (CDDP)/
State/Disabled Children and Families/Housing and Support
Services through CDDP are offered to children and families and range from in home family support, intensive in-home supports and 24- hour services in foster care or residential placement.
OED (Oregon Employment Department)/State/Parents/Employment
OED acts as a support for economic stability for Oregonians and communities during times of unemployment through the payment of unemployment benefits. They serve businesses by recruiting and referring the best qualified applicants to jobs, and provide resources to diverse job seekers in support of their employment needs. Develop and distribute quality workforce and economic information to promote informed decision making.
http://www.oregon.gov/ EMPLOY/Agency/Pages/ Mission.aspx
SNAP (Supplemental Nutrition Assistance Program)/State/Family Unit/Food and Nutrition
The Food and Nutrition Service works with State agencies, nutrition educators, and neighborhood and faith-based organizations to ensure that those eligible for nutrition assistance can make informed decisions about applying for the program and can access benefits. FNS also works with State partners and the retail community to improve program administration and ensure program integrity.
OHA (Oregon Health Authority/State/Family Unit/Health Care
The Oregon Health Authority is at the forefront of lowering and containing costs, improving quality and increasing access to health care in order to improve the lifelong health of Oregonians.
Oregon State Children's Health Insurance Program (SCHIP)/State/Children/Health Care
SCHIP allows Oregon to offer health insurance for eligible children, up to age 19 who are not already insured.
Addictions and Mental Health Services - OHA/State/Children/Family Unit/Mental Health
This program through OHA is working to improve mental health services to children in Oregon by: Involving parents and youth in healthcare decisions, delivering mental health services in the community, and improving inter-agency coordination.
http://www.oregon.gov/ oha/amh/Pages/children -mental-health.aspx
ERDC (Employment Related Day Care)/State/Parents/Childcare
The Employment-Related Day Care program (ERDC) helps eligible low-income families pay for child care while they are working. ERDC is a subsidy program, meaning eligible families still pay part of the child care cost.
Earned Income Tax Credit (EITC)/State/Parents/Financial Assistance
The Earned Income Tax Credit, EITC or EIC, is a benefit for working people with low to moderate income. To qualify, you must meet certain requirements and file a tax return, even if you do not owe any tax or are not required to file. EITC reduces the amount of tax you owe and may give you a refund.
http://www.irs.gov/Cred its-&- Deductions/Individuals/Earned-Income-Tax-Credit
Child Tax Credit (CTC)/State/Parents/Financial Assistance
This credit is for people who have a qualifying child. It can be claimed in addition to the Credit for Child and Dependent Care expenses
The Federal TRIO Programs (TRIO) are Federal outreach and student services programs designed to identify and provide services for individuals from disadvantaged backgrounds. TRIO includes eight programs targeted to serve and assist low-income individuals, first generation college students, and individuals with disabilities to progress through the academic pipeline from middle school to post baccalaureate programs.
http://www2.ed.gov/ab out/offices/list/ope/trio/ index.html
WIC (Women, Infant, and Children)/Federal/Mothers and Children/Food
WIC is the Special Supplemental Nutrition Program for Women, Infants and Children. This public health program is designed to improve health outcomes and influence lifetime nutrition and health behaviors in targeted, at-risk populations. Nutrition education is the cornerstone of the WIC Program.
https://public.health.ore gon.gov/HealthyPeopleFamilies/wic/Pages/index. aspx
Temporary Assistance for Needy Families (TANF)/Federal/Family Unit/Cash Assistance
The TANF program provides cash assistance to low-income families with children while they strive to become self-sufficient. Cash assistance is intended to meet a family’s basic needs such as food, clothing, shelter and utilities. Most cash benefits in Oregon are issued via an Electronic Benefit Transfer (EBT) card. This is also known as an Oregon Trail Card.
Medicaid/Federal/State/Family Unit/Medical Assistance
Medicaid provides health coverage to millions of Americans, including eligible low-income adults, children, pregnant women, elderly adults and people with disabilities. Medicaid is administered by states, according to federal requirements. The program is funded jointly by states and the federal government.
Oregon Head Start Association (OHSA)/Federal/Pre-K/Education
The Oregon Head Start Association (OHSA) is a 501 (c) (3) non-profit association which provides leadership, advocacy, and training for Oregon Head Start Pre-Kindergarten (OPK), Head Start (HS), and Early Head Start (EHS) programs.
LIEAP (Oregon Low Income Energy Assistance Program)/Federal/Family Unit/Energy Assistance
Federally funded program through the U.S. Department of Health and Human Services. LIEAP is an assistance program designed to help low income households with home heating costs.
As we collected information from various agency and local leaders, we discovered that most groups at the state and local level use the services provided by 211info (for more details, go to http://211info.org/) to identify services for families. 211info provides a guide to health and social services for families in Oregon and Southwest Washington. They use their database of service providers to direct customers to supports when they call in or search their website for resources (see Appendix B for more info on this resource). 211info, with funding from the State of Oregon, has created a sizeable database of many of the services and programs that support families navigating poverty at the local, state and federal levels. Their database codes service providers by the type of need they fulfill and then further identifies the type of service or program. In order to provide this workgroup an extensive overview of the types of poverty services and programs at the local, state, and federal level, we requested reports from 211info that identify the number and type of services providers for each Oregon county and for the State of Oregon as a whole. These reports are included as a resource in Appendix C of the report.
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Appendix A. State and County-wide Poverty Rates by Racial/Ethnic Categories
Appendix B. Info211 Infographic
Appendix C. Info211 Services by County and by State
 We have used the term “underprivileged” because it comes directly from publication text, though through our commitment to use Asset Based language, we recommend using a phrase like “historically underserved” in this context. Doing so, pivots away from blaming the family and instead acknowledges our collective set of systems ineffectiveness at providing the services/supports the referenced families need to thrive.
 Same note as reference #1 above.