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SUBMITTED PHOTO - Pete ShepherdBeing asked to deal with activists hungry for information and fix an agency’s problems is nothing new for Pete Shepherd.

But he hasn’t always made people happy while doing so.

Shepherd is the longtime Salem lawyer tapped by Gov. Kate Brown to head the state Department of Environmental Quality in the wake of accusations that the agency had tolerated dangerous toxic air pollution in the heart of Portland and failed to protect public safety.

While Shepherd carved out a distinguished career at the Oregon Department of Justice as the top staff lawyer and administrator, he remains a controversial figure among transparency activists and records experts.

He oversaw what was billed as an extensive review of the Oregon State Board of Nursing in 2006, intended to address problems exposed by the Portland Tribune. But he recommended few changes and did nothing to halt the controversy there, leading then-Gov. Ted Kulongoski to clean house less than a year later.

Shepherd, for his part, says he is committed to providing the public with needed information. He displayed his trademark charm and self-deprecating manner during a more than hourlong interview, disclosing that tribal members he used to work with had given him the name “Long Wind.”

Shepherd contends he will have a freer hand to make changes at DEQ now than he had years ago concerning accusations that the nursing board had tolerated dangerous nurses and failed to protect public safety.

“I was their lawyer, not their executive director,” Shepherd says of his role with the nursing board. But now the interim director of DEQ is a “decision-making role,” he adds. “That’s a dramatically different thing.”

Public lawyer

A former prosecutor, Shepherd rose up through the ranks of the Department of Justice under Attorneys General Dave Frohnmayer and Hardy Myers. He spent roughly a decade as Myer’s second-in-command, a position traditionally tasked with running the day-to-day operations of the state Department of Justice.

There, he was generally highly regarded among the department’s employees, says Nick Caleb, a lawyer and clean-air activist who worked as a law clerk at DOJ.

“He seemed to be respected, seen as even-handed, kind of statesmanly,” Caleb recalls. “It seems like he’s managed to maintain that reputation.”

Myers, his former boss, says Shepherd “has got an extremely well-organized mind. ... He has a tireless work ethic, and I want to say he has a very creative mind as well. ... He’s just an all-around terrifically capable individual.”

That’s why in 2006 Shepherd was asked to help fix the Oregon State Board of Nursing, following articles in the Portland Tribune about allegations the board had protected nurses who were a threat to public safety. He promised a “full, open review.”

But critics noted that Shepherd’s review did not examine the performance of top nursing board officials, and the department stopped DOJ attorneys from speaking publicly — including two who’d publicly raised questions about the nursing board.

In October 2006, Shepherd recommended the Oregon Legislature approve new positions to help the board better protect the public.

But the Tribune continued to break news from within the nursing board, and a subsequent investigation by the Department of Administrative Services found far deeper problems at the board than Shepherd had uncovered, leading to the resignation of the board’s director.

Mark Riskedahl of the Northwest Environmental Defense Center says that an open, informed discussion about DEQ is what the public needs. Stifling debate would not be good, he says.

Shepherd defends his nursing board review, as well as the decision to stop his department’s attorneys from speaking publicly about the board. It made sense for him to be the only voice of the department.

“The whole point of having me involved directly was that I was the Attorney General’s alter ego,” he says. “That’s the reason why I was the face of the DOJ on those issues.”

At DEQ, he plans to do more than maintain the status quo until a permanent director is hired.

“The mission of this agency is too important for me to simply be a caretaker,” he says.

Controversial record

Transparency advocates do not remember Shepherds’ time at DOJ fondly. The state’s attorney general is tasked with interpreting the Oregon Public Records Law, issuing orders to settle records disputes between members of the public and state agencies. Shepherd’s duties included public records, and he was the lawyer who typically signed orders issued by the Myers administration.

At a talk about government transparency hosted last week by the University of Oregon in Portland, Myers’ record was characterized as a low point for Oregonians trying to understand how their government worked.

Investigative reporter and University of Oregon journalism professor Brent Walth described his review of records decisions detailed in the state’s open records manual, which showed Frohnmayer ruled in favor of disclosure most of the time, but Myers ruled for disclosure only 28 percent of the time.

Myers’ tenure was “a disaster ... (and) wrecked the state’s records law,” Walth said. In contrast, Myers’ successors, John Kroger and Ellen Rosenblum, “have done a pretty good job” of trying to open up records.

Myers had ruled that information about PERS retiree benefits, as well as Nike’s sponsorship contracts with the University of Oregon, could not be released. Both rulings later were overturned, as was a ruling that autopsy records shouldn’t be released.

Shepherd, however, says he believes Walth’s figures don’t take into account the times when his office told agencies to issue records informally, rather than issue a formal order.

“I’m actually very comfortable with (my) record on disclosure,” Shepherd says, adding that since leaving the department he’s been following efforts to improve the state’s records law, and even has some suggestions. Changes “are essential if agencies are going to be accountable to the people on whose behalf they are acting.”

Bill Harbaugh, a University of Oregon professor and records activist, doesn’t buy it. He says Shepherd viewed his job as preventing the release of information.

“Given his history at the Oregon DOJ, Pete is the perfect man to ensure that the public is protected from any additional releases — of public records,” he says. “I’m surprised that the governor believes he’ll protect the public from releases of air toxins as well.”

Since leaving office, Shepherd has worked for Harrang Long, a top law firm. There, he’s been part of at least three lawsuits against newspapers to block the release of public records. In one of them, he sued The Oregonian on behalf of Oregon Health & Science University to block the release of records about potential litigation that had been ordered released by the Multnomah County District Attorney’s office.

In a court hearing, Duane Bosworth, one of the top records lawyers in the state, characterized Shepherd’s arguments for secrecy as disingenuous and “outrageous.”

A Multnomah County Circuit Court judge sided with The Oregonian, but the case is under appeal. Shepherd noted that the appeals court hasn’t ruled yet on the case.

He says he has no plans to return to Harrang Long, and instead plans to work half-time when he’s done at DEQ, so he and his wife can spend time fly-fishing in their new home in Sisters.

The hiring of Shepherd, considering the past criticisms he’s faced, might seem strange considering Brown’s statements about the need to increase transparency. Jim Moore, a government professor for Pacific University, said the hire suggests the agency is “hunkering down against criticism instead of saying, ‘let’s take the criticism and see how we can deal with it.’”

But Kristen Grainger, Brown’s communications director, says a few criticisms are inevitable given Shepherd’s long career. She worked with Shepherd at the DOJ.

“It would be difficult to spend two or more decades effectively enforcing the laws that protect the public without comment,” she says. “That said, his professional integrity is well-established and Governor Brown is grateful he is able to step into this interim role.”

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