Oregon’s first public records advocate resigned on Monday roughly 18 months into the job, citing irreconcilable differences with Gov. Kate Brown’s staff over the advocate’s role. The advocate, Ginger McCall, said members of the governor’s staff pressured her to take Brown’s side on records matters -- but keep the governor’s role under wraps.
“When I accepted this job, it was with the understanding that the Office of the Public Records Advocate was to operate with a high degree of independence and had a mandate to serve the public interest,” McCall wrote to the governor in a letter first reported by Willamette Week. “Meetings with the governor’s general counsel and staff have made it clear, however, that the governor’s staff do not share that view.”
Read McCall’s full letter to the governor here.
McCall was Brown’s choice to serve in the new position that the Legislature created at the governor’s urging. Her role was to improve public records access and mediate disputes between the public and state and local government agencies over which records should be released or kept confidential.
The public records advocate works out of the Secretary of State’s Archives Division, a choice lawmakers made to allow the advocate to function independently of the governor’s office.
In the letter to Brown, McCall said that’s not how the job unfolded, as the governor’s staff pressured her to represent their interests. The Oregonian/OregonLive received McCall’s letter from the governor’s office Monday in response to a public records request.
McCall wrote that much of the pressure came from Brown’s top lawyer, general counsel Misha Isaak, whom the governor appointed in late August to a position on the Oregon Court of Appeals. Isaak, who has no experience as a judge, is the third aide Brown has named to a judgeship.
“I have received meaningful pressure from the governor’s general counsel to represent the governor’s office’s interests on the Public Records Advisory Council, even when those interests conflict with the will of the council and the mandate of the Office of the Public Records Advocate,” McCall wrote. “I have not only been pressured in this direction but I have been told that I should represent these interests while not telling anyone that I am doing so ... If the (public records advocate) were to represent the interests of an elected official while allowing the council and the public to believe that she is acting independently, that would be both unethical and particularly inappropriate for an office that was founded to promote transparency."
McCall, who described Isaak’s actions as an “abuse of authority” and "counter to the transparency and accountability mission that I was hired to advance,” said she made multiple attempts to find a workable solution but no longer believed a solution was possible.
In a statement issued late Monday afternoon, Brown said “the allegations made today by Ginger (McCall) are a surprise to both me and my chief of staff (Nik Blosser). I find the fact that this situation has reached the point where she feels the need to resign deeply regrettable. Had Ginger reached out to me sooner, I would have put my efforts into addressing her concerns and avoiding her resignation.”
The governor placed the blame squarely on Isaak and Emily Matasar, another of her attorneys, writing, “It appears this is a situation where staff were conflicted between the goals of serving the governor and promoting the cause of transparency. Let me be clear, there should be no conflict.” Brown said she wants the Public Records Advisory Council to propose legislation to “to create a truly independent position.”
The governor’s statement conflicted with an earlier statement that her communications director, Chris Pair, emailed to OPB saying “the allegations made by Ms. McCall are untrue.”
Brown did not say whether there would be any consequences for Isaak, who has not yet started his new job on the Oregon Court of Appeals, or Matasar, who continues to work in the governor’s office and is responsible for handling public records requests.
Isaak did not respond to a call for comment via cell phone Monday afternoon.
In her letter, McCall thanked Brown for creating the job of public records advocate and showing support during a difficult time in McCall’s life. Separately, McCall notified the Public Records Advisory Council of her resignation on Monday. Read that letter here.
Upon taking office following Gov. John Kitzhaber’s resignation, Brown pledged to make transparency a top priority and sharply critiqued the former governor who accumulated a voluminous public records request backlog amid an influence-peddling scandal. “It was clear transparency was not a priority in the prior administration,” Brown said of Kitzhaber in 2015. Public records reforms and the creation of the Office of the Public Records Advocate and Public Records Advisory Council were part of the governor’s 2017 legislative agenda, Pair, her communications director, pointed out in an emailed statement.
Yet Brown’s proposal to have the public records advocate serve at the pleasure of the governor and operate out of the agency largely responsible for carrying out the governor’s agenda ran into criticism that the advocate would not function independently enough, The Oregonian/OregonLive reported in late 2016.
Pair’s statement included the inaccurate claim that “when creating the Office of the Public Records Advocate, the Legislature decided to put the position under the governor’s authority and did not have the inclination to make it independent of the executive branch.”
In fact, lawmakers who created the records advocate position in 2017 made it clear they envisioned an independent records expert who would not be beholden to the governor, the secretary of state or any other politician. The Senate Committee on Government Accountability changed the original proposal — to have the advocate “serve at the pleasure of the governor” — to limit the governor’s power to removing the advocate only for serious, proven failings.
During a hearing, Sen. Floyd Prozanski, a Eugene Democrat, said he wanted the advocate to be a “pitbull” for government transparency, free from political or budgetary pressure to act otherwise.
The governor met with the public records advocate and her two lawyers, Isaak and Matasar, on May 9, according to a timeline McCall created to chart the events during her time as public records advocate. “Gov. Brown and staff emphasized the importance of the advocate being on the ‘DAS’ team and the importance of ‘improving communication,’” McCall wrote, referring to the Department of Administrative Service which is largely responsible for carrying out the governor’s agenda and whose director the governor hires and can fire.
A central tension between McCall and the governor’s office was to whom the public records advocate reported and whether the advocate would have to run budget and policy proposals by the governor’s office before supporting them publicly, according to records obtained by The Oregonian/OregonLive through a public records request.
For example, McCall documented in a memorandum her Jan. 15, 2019 meeting with Isaak and Matasar in the governor’s office. McCall explained in the memorandum, which she said was written the day after the meeting, that she had been getting together on a weekly basis with Matasar. McCall thought the meetings were “a friendly effort by the governor’s office to keep up with the work of the advocate and the (Public Records Advisory Council), to offer advice and feedback, and to exchange information.”
However, McCall wrote that Isaak had raised concerns in a Jan. 7, 2019 meeting that included Deputy Public Records Advocate Todd Albert and Matasar regarding a November 2018 Public Records Advisory Council report. At issue was whether McCall and Albert must send draft reports to the governor’s office for approval.
In the Jan. 15, 2019 follow-up meeting, McCall, Isaak and Matasar discussed whether the public records advocate works for the governor. According to McCall, Isaak said the public records advocate was supposed to independently train governments on public records laws and media public records disputes but “for political matters and matters of policy, the advocate worked for the governor and the governor is free to intercede.”
“Misha then conveyed that in his interpretation he is the supervisor of the advocate and the weekly meetings I had had with Emily (Matasar) were, in fact, supervisory check-ins," McCall wrote in her memorandum. “That had never been conveyed to me before.”
Read McCall’s memo on the Jan. 15, 2019 meeting here.
According to her memo, the discussion then turned to whether the public records advocate, who serves as chair of the Public Records Advisory Council, should work behind-the-scenes to advance the governor’s political positions. Isaak expressed disapproval of a proposal on annual public records reporting requirements that would apply to state agencies but not local governments such as cities and counties.
“Misha (Isaak) conveyed to me that by doing that the council ... had put the governor in an awkward position of having to potentially oppose bills herself instead of relying on stakeholders and lobbyists for cities, counties and special districts to oppose the bills,” McCall wrote. “When I stated that I did not have control over the proposals the council agrees to and that this was a compromise that had allowed a bill to reach consensus agreement, he stated that I should be considering the effect this has on the governor’s office ... I stated my discomfort with being put in the position of advocating for an agenda that which I was not free to disclose or discuss with the council. This objection was not really discussed.”
McCall said the meeting concluded with Isaak praising her work setting up the public records advocate’s office but also cautioning her to “be less ambitious, not move so fast, and recognize that I do not know about the politics or nuance of Oregon. Thus, I should ‘listen,’ and not attempt to propose reforms about things I do not fully understand." McCall said Isaak’s comments felt “both demeaning and condescending.”
Before coming to Oregon, McCall represented both individuals trying to obtain government records and the government agencies that maintain public records. She led an open government program at a public interest research organization called the Electronic Privacy Information Center, and she served on the Freedom of Information Act Federal Advisory Committee run by the National Archives and Records Administration. In that job, McCall represented both the government and public records requesters.
McCall’s last day will be Oct. 11, after which the Deputy Public Records Advocate, Albert, will take over as acting advocate until a new advocate is selected, according to a press release McCall issued on Monday. Under state law, the Public Records Advisory Council will select three candidates for the advocate job and the governor will select from among them. McCall said she plans to return to Washington, D.C. where she has accepted a job with the federal government.
— Hillary Borrud