DA orders Portland to release controversial bureau audit
The Multnomah County District Attorney has ordered Portland officials to release a third-party audit of an embattled bureau.
District Attorney Mike Schmidt said the audit of the Office of Community
& Civic Life was not exempt from disclosure as the Portland City Attorney's Office had claimed. In a Tuesday, May 11 ruling released late in the day, Schmidt said the city had not proven its claim the audit was protected by attorney-client privilege.
"The City has not met its burden of showing that the primary purpose, or even a substantial purpose, of this document is the facilitation of legal services. All indicators show it to be business, management, personnel, and public relations advice intended to guide the transformation of a struggling office. Such advice, and the fact finding underlying it, is not exempt from disclosure regardless of what label is placed on it," Schmidt wrote.
The City of Portland has seven days to decide whether to appeal the ruling to the Oregon Court of Appeals. The City Attorney's Office did not immediately respond to a request for comment.
Former employees and several news organizations had accused the City Attorney's Office of violating Oregon's public record laws by withholding information about a bureau that has been accused of historic mismanagement.
"Allowing the City Attorney to withhold this important review of the behavior at Civic Life serves, not justice for the people victimized, but rather to help the city prevent community members from understanding the full extent of the governance and management failures in city government," said Paul Leistner, a former employee who now is a senior fellow at the Portland State University Center for Public Service at the Hatfield School of Government.
The audit was begun last year after numerous employees complained about personnel problems to the Bureau of Human Resources and City Ombudsman Margie Sollinger. The audit was conducted by the ASCETA consulting firm and is now finished.
The City Attorney's Office turned down public records requests for the audit from Leistner and several other people and news organizations, including the Portland Tribune. The office argues the audit is exempt from disclosure because of attorney-client privilege.
Some of the people and news organizations have appealed the denial to the Multnomah County District Attorney, as provided by Oregon's public records laws. They include Oregon Public Broadcasting and Willamette Week.
The City Attorney's Office responded to OPB's appeal with a nine-page "Confidential Submission" dated April 12, 2021. It said that Senior Deputy City Attorney Lory Kraut retained the consulting firm at or around the time of the complaints to the ombudsman to conduct an assessment for the purpose of providing legal advice.
The submission said the complaints ranged from bullying to unethical hiring and contracting processes, harassing and retaliatory behaviors, the inability of leadership to resolve problems, and a high rate of turnovers. They came from "Caucasians and people of color, employees with long seniority as well as relatively new employees, line employees and supervisory employees," according to a redacted version of the submission obtained by the Portland Tribune.
"The assessment was the necessary, foundational precursor for me to provide informed legal advice. I viewed the complaints as symptoms, but I needed to understand the underlying issues before I could identify potential options and evaluate the risk and potential liability associated with those strategies," Kraut wrote.
It is not immediately clear what information was redacted in the submission and why.
"I think it's pretty audacious to ask employees to candidly share their workplace experiences with a consultant and then refuse to share the consultant's findings with the employees," Sollinger said. "There may be aspects of the report that can be withheld under public records law exemptions, but the wholesale withholding is counter-productive to repairing what's broken within the bureau."
Mayor Ted Wheeler and Commissioner Jo Ann Hardesty, who oversees the bureau, did not respond to requests for comment.
Public record denial appealed
Oregon Public Broadcasting filed an 18-page response on April 30. It argued the firm was retained to conduct an operation analysis of the office, not to provide background for legal advice.
"As an initial matter, we disagree with the City's framing of the issue. The issue in this case is whether a public body can avoid its responsibilities for transparency under the Public Records Act ("PRA") by having its attorney hire a consulting firm to perform a wholistic analysis of the workplace culture of one of its bureaus and then use that report to guide business decisions," wrote OPB Deputy General Counsel Jon Bial.
The response said Hardesty told OPB reporter Rebecca Ellis that the audit would help her better understand the culture of the office so that she can make recommendations on how to transform it. Ellis has reported extensively on problems with the office over the past few months.
"None of these statements discuss litigation, liability, or any legal matters. Commissioner Hardesty intends to use the report for business purposes only. If the intent of the audit were to address legal matters, Commissioner Hardesty could have said, 'I can't comment on pending legal matters,'" Bial wrote.
"Transparency and accountability are important core values of mine. I am eager to see the ASCETA audit myself," said Portland commissioner Mingus Mapps, who worked for the office before defeating Commissioner Chloe Eudaly, who had been in charge of the office, at the November 2020 election.
The district attorney's office said it does not know when it will issue a ruling, according to spokesman Brent Weisberg.
Office long controversial
Not releasing the audit was puzzling because the controversy about the Office of Community & Civic Life has been widely publicized. It may have even played a role in Mapps's defeat of Eudaly. He accused her of mismanaging the office during the campaign.
After Sollinger, the city ombudsman, received what she termed an "unprecedented" number of personnel complaints from Office of Community & Civic Life employees, she recommended the third-party audit that was conducted. But in an Aug. 31, 2020, email to the employees, Sollinger said she feared the audit was being sabotaged to protect the office's management.
"Rather than being employee-centered, it instead appears to be intended as a tool to help management achieve the organization's goals. Given what I've heard from many of you, I am skeptical that Civic Life can succeed in transformative organizational change without first undertaking a process to redress all of the harm done, including holding accountable anyone found to have engaged in unethical, improper or other misconduct," Sollinger wrote in the email that was obtained and published by Willamette Week a little more than two month before the election.
Eudaly responded by accusing Sollinger of politicizing her office.
Mapps publicly brought up the audit as recently as March 10 when the council was deciding whether to defund Southwest Neighborhoods Inc., the neighborhood coalition office in Southwest Portland. Hardesty said she wanted all city funds pulled from the neighborhood coalition because of a recent audit that, she said, showed fiscal mismanagement. She proposed the Civic Life office take over its responsibilities.
Mapps asked that the vote be delayed because thought the ASCETA audit would be released soon.
"I am concerned about the results of the upcoming ASCETA audit of Civic Life that is due to come out within a week or so," Mapps said in an emailed statement to KOIN 6 News. "Allegations of staff abuse make voting for an ordinance to authorize additional staffing logically and ethically challenging for me."
The council rejected the delay and voted to defund the neighborhood coalition with Mapps being the lone "no" vote.
Last year, the Civic Life office released a copy of its third-party audit of Southwest Neighborhoods Inc. quickly, and without need for a records request, but the city failed to do the same for an audit of one of its own bureaus.
The order can be read here.
A previous Portland Tribune story on the issue can be read here.
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