Hillary Borrud

By Hillary Borrud

The Oregonian/OregonLive

SALEM – Oregon ethics officials voted unanimously Friday that former Gov. John Kitzhaber misused his public office for personal gain by helping his fiancée Cylvia Hayes to blur the lines between her paid work and powerful role shaping state policy.

In total, the commission found 10 instances in which Kitzhaber violated state laws against public officials misusing their positions, accepting gifts and failing to disclose potential conflicts of interest. He could be fined as much as $50,000 as a result.

Alison R. Kean, a government lawyer and chair of the Oregon Government Ethics Commission, said during the meeting that the influential position Kitzhaber opened to Hayes, as first lady and hand-picked volunteer policy adviser, “is valuable and you can sell that and I think she did.”

Kean said it did not matter if Kitzhaber was unaware, as he claimed, of details of what private groups paid Hayes to accomplish. “He knew enough,” Kean said.

Private groups paid Hayes more than $200,000 during Kitzhaber's third term to promote environmental and economic policies, in particular an initiative known as the Pacific Coast Collaborative to encourage West Coast states to adopt the same green energy policies.

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Hayes was only able to secure those contracts and perform some of the work, such as a paid speech she delivered as first lady and attending a meeting of West Coast governors, because she was first lady and the governor gave her extraordinary access to levers of power, the commission found.

Kitzhaber appeared in person before the commission and lobbied hard against the idea that he intended to financially benefit himself or Hayes.

This week marked three years since Kitzhaber resigned amid a firestorm over Hayes’ contracts and the secrecy in which they were kept. State and federal prosecutors subsequently announced they would not file criminal charges against the couple.

"My concern is the assault on my integrity," Kitzhaber told the commission Friday. "I've made my share of mistakes, no doubt about it. But using my office for personal gain is simply not one of them."

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Hillary Borrud | The Oregonian/OregonLive

Ethics commissioners said it did not matter whether Kitzhaber acted with intent to benefit himself or Hayes, because his actions opened the door for Hayes to cash in.

“He had a tremendous amount of power,” said Commissioner Nathan Sosa, a lawyer in private practice. “And he used that power to open doors for his fiancée to give her access, to encourage or instruct others to give her access and to put her in a positon where she could use that access -- and did use that access -- to enrich herself."

Kitzhaber and his two attorneys argued that any financial benefit he and Hayes might have gained as a household was unintentional on the governor's part. They said that due to the lack of intent, it would be incorrect for the commission to find that the governor violated the law.

“At no point did I ever ask anyone to hire Ms. Hayes, nor did I ever ask anyone to fund her work,” Kitzhaber told the commission. “And I never undertook a policy initiative or gave a speech or attended a meeting for the purpose of advancing her career. There was never any intent on my part to use my position to enhance the financial benefit for either her or myself.”

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But public records reported previously in the press and cited by the ethics commission this week revealed that arranging paid work for Hayes was a top concern for the couple just days after Kitzhaber took office in 2011. At the time, Hayes was supposed to line up funding for her new job at a nonprofit called the Rural Development Initiatives and the task proved challenging. Kitzhaber offered to help.

"First, I will continue to do everything I can to make sure that the bridge funding comes through and will use my own resources if necessary," the governor wrote in an email to Hayes. "I am getting an update this Friday which will hopefully offer some encouragement. And as I said to you a few days ago, I think you need to lean into the WORK over this next month and concentrate on the foundation front (I believe that I can send support letters to foundations) for the longer term funding of what is a very exciting program."

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Kean, the chair of the commission, cited correspondence showing how Kitzhaber pushed back when his top staffers attempted to delineate Hayes’ roles as first lady and adviser to the governor and as a paid advocate, a job one funder labeled a “fellowship.”

In that August 2011 exchange, Kitzhaber wrote that "Cylvia needs to be advocating the same clean economy policy in her role as spokesperson/advocate for the Governor's Office and her role as a Clean Economy fellow. There cannot be any daylight between them. This is another reason why she needs a role in developing the (state) policy itself."

“This is the opposite of ensuring this is a bright line between public work and paid private work,” Kean said.

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Kitzhaber said he thought it was kosher for Hayes to accept payment to advocate for the policies, so long as they were the policies developed by his administration including other policy advisers.

Ethics commissioners repeatedly pointed out Kitzhaber never asked for the commission’s input on how to comply with state law, something that public officials including state lawmakers commonly do in order to avoid problems.

In fact, Kitzhaber asked the commission in 2013 for an opinion on whether he could give paid speeches but did not ask for input on Hayes' contracts until after the scandal erupted in 2014. Emails uncovered during the ethics commission's recent investigation of Hayes showed staffers in the governor's office were concerned about the issue in early 2011, when they anticipated reporters might ask groups paying Hayes, "Are you trying to gain favor or access with the governor?"

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Kitzhaber could face up to $50,000 in fines based on the violations the commission found to have occured, but officials did not consider that matter on Friday. First, Kitzhaber has the option to request a hearing before an administrative law judge to contest the commission's findings. He could also appeal to a state hearings officer and ultimately all the way to the Oregon Supreme Court.

Last month, the commission approved preliminary findings that Hayes violated state laws on 22 occasions. The former first lady could ultimately face up to $110,000 in fines, but she also has the option to appeal. Kitzhaber and Hayes will each have 21 days to start the appeals process once the ethics commission sends them formal notices of its decisions.

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Commissioners decided not to find that Kitzhaber misused his office by allowing a staffer to care for Hayes' pets, after the former governor told commissioners that staffer was a longtime friend of his and the godmother of his only child. Kitzhaber had referred to that allegation on Friday as "pet gate."

Kean and other commissioners said they admired Kitzhaber’s long career in Oregon politics and policy work for the state. “I feel for him,” Kean said. “I also still very much respect much of his life’s work here in our state.”

Kitzhaber acknowledged in November that he violated the ethics law requiring him to disclose potential conflicts of interest regarding the overlap between his policy decisions and public appearances and the issues for which Hayes was being paid to advocate. Kitzhaber also admitted to using his position to obtain frequent flier miles and offered to pay a $1,000 fine. The commission rejected the settlement proposal.

-- Hillary Borrud; Twitter: @hborrud; 503-294-4034