SALEM — Lawyers for former Oregon first lady Cylvia Hayes and The Oregonian newspaper were back in court Wednesday morning to present arguments on whether Hayes must release her emails.
Marion County Circuit Court Judge Tracy Prall did not say when she will rule on the lawyers’ arguments, but that decision could determine whether the case goes to trial.
The Oregonian filed a request earlier this year for correspondence to and from Hayes’ personal email accounts that dealt with state business.
Hayes served as an unpaid adviser to her fiancée, former Gov. John Kitzhaber, on the same energy and economic issues for which she was a paid consultant. However, Hayes never had a government email account and instead used several private email accounts to correspond with public employees regarding state policy, travel arrangements and her private consulting business. One of those was a Gmail account with the signature “Cylvia Hayes First Lady State of Oregon.”
Hayes filed a lawsuit against the newspaper to prevent the disclosure of her emails, after the Oregon Attorney General’s Office ordered Hayes to turn over the emails in February.
Lawyers on Wednesday spent part of the hearing discussing whether Hayes can invoke the Fifth Amendment right against self-incrimination to avoid disclosing the emails. The office of Gov. Kate Brown already released 94,000 emails between Hayes and administration staff in April, so the lawsuit now centers upon the fate of approximately 30,000 additional emails Hayes sent or received in the time period requested by The Oregonian.
Charles Hinkle, a lawyer for The Oregonian, said Hayes has not presented evidence that the act of releasing the emails would violate her Fifth Amendment right. After all, Hinkle said it is already well-established that Hayes sent emails from her private accounts that dealt with state business.
“It’s not a crime to send an email,” Hinkle said. “So plaintiff has to show why the act of producing that email would incriminate her.”
Hayes’ attorney, Whitney P. Boise, said it was his understanding that additional arguments on the issue were unnecessary, because Prall already decided in a May 21 ruling on The Oregonian’s motion for partial summary judgment that Hayes could invoke her Fifth Amendment right to block the release of the remaining emails.
Prall said that was incorrect. “All I have done is I denied (Hinkle’s) motion for summary judgment, which means you proceed with the claim,” Prall said. “It doesn’t mean I’ve ruled that we’re done.”
Boise said the request for Hayes to determine when her emails dealt with public business and when they were private gets at the distinction between Hayes’ paid consulting work and public policy role, which is the heart of a federal criminal investigation into influence peddling allegations against Hayes and Kitzhaber. Some of the groups that paid Hayes also had interests in state energy, environmental and economic policies.
“The Oregonian has reported there is a federal investigation, and that determination is how the money she was paid by private institutions, what they were paying for, whether it was work for them or for the state of Oregon,” Boise said. Federal statutes on honest services and bribery all address who is paying a public official, and what those entities are paying for, Boise said.
Lawyers also discussed Wednesday whether Prall has jurisdiction in the case. Boise said Hayes’ role did not appear to meet strict definitions of state government agencies or officials, so it might be necessary for a district attorney — not the Oregon attorney general — to decide whether Hayes must release the emails. In that case, Boise said the Deschutes County district attorney should make the decision because Hayes lives in Bend.
Hinkle said Boise’s argument contradicted decades of legal precedent.
“Ever since 1972 the statute has not been interpreted that way,” Hinkle said.