DA can't compel release of Mayor Dan Holladay investigation
At an Oct. 2 meeting of Oregon City commissioners, a draft of the long-anticipated investigation into Mayor Dan Holladay was finally released, but only to the city's elected officials.
Oregon City's closed-door meeting came the day after the Holladay recall qualified with many more than the required number of valid signatures and Holladay faced an Oct. 6 deadline to resign or face a recall election. Holladay's 200-word "statement of justification" then put a recall initiative on the ballot.
Lori Watson was the investigator hired by the city on July 8, after city commissioners on June 17 ordered an investigation into the mayor's continued defiance of COVID-19 orders and his attempts to raise money for a city celebration that would have been in violation of the ban on large public gatherings.
On Oct. 9, Clackamas County District Attorney's Office found that the Holladay report can be exempted from state laws that normally require the timely disclosure of public records, although Deputy DA Jeffrey Nitschke said Pamplin Media Group made a "compelling public interest argument" for the report's public disclosure.
"A public body's investigation into wrongdoing by an officer of the body can be of no greater interest to the public when that very officer's conduct is the basis for a recall election," Nitschke wrote.
However, Nitschke found that no amount of public interest can compel a public agency to release a report when that agency cites "attorney-client privilege" as Oregon City did under state laws that govern exemptions to public records.
"ORS 192.355(9)(a), the attorney client privilege, does not contain any language allowing for the release of information if the public interest demands," Nitschke wrote. "As such, we cannot consider the public interest in our analysis."
Nitschke noted that Oregon City officials have expressed an intention to waive their attorney-client privilege at some point in the future. The city's Oct. 2 website posting committed elected officials to a "transparent review of the allegations," while providing no details about the facts in the draft report.
"Thus, while the intent of the City may be to eventually release the report, they have not yet disclosed any details of the report or actually waived the privilege," Nitschke wrote.
Commissioners have unanimously voted "no confidence" in Holladay after the city's two leading business groups testified at the commission's July 1 meeting.
Holladay joined the unanimous City Commission vote that Oregon City would continue to follow COVID-19 orders, but then began asking businesses to fund his now-canceled July 4 fireworks show, at least once with a member of city staff present at the meeting with a business owner. Commission President Rachel Lyles Smith said she had a "real concern" about Holladay as an elected official soliciting funds on behalf of the city.
Holladay's subsequent inflammatory comments about police killings and systemic racism led Oregon City's elected officials to pass a resolution in response to the killing of George Floyd. Although he participated in the June 9 meeting and joined the unanimous vote to support the resolution against racism, he did not make any additional comment, unlike the other commission members who spoke at length pledging to fight for a public environment that is respectful and free of hate.
Holladay also declined to sign a June 4 statement from the Mayors' Metropolitan Consortium consisting of 26 regional mayors standing in solidarity with residents mourning Floyd's murder.
Holladay's alleged request for campaign funding is part of an impending lawsuit over a stalled construction project. He also directed a city-contracted employee to end the meeting recording directly after he adjourned a June 3 meeting, which prevented other commissioners from responding to his comments about racism on tape.
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