Despite altering policy, Foote tells commisioners that he sees 'refusal to really change.'

COURTESY PHOTO - Sheriff Craig RobertsClackamas County Sheriff Craig Roberts disagrees with reports by the county's top prosecutor and an independent investigation that he has not been following his own policies to notify the district attorney's office when deputies are being investigated for criminal offenses.

Public documents recently obtained by Pamplin Media Group show that Roberts wrote an inter-office memo describing a policy of "prompt verbal notification" to the county district attorney's office when deputies are suspected of crimes.

Roberts wrote the policy to his two undersheriffs in 2011, about one year after CCSO Lt. Graham Phalen, who was assigned to the internal affairs unit, asked investigators to "hold off" on contacting the district attorney's office about CCSO Sgt. Jeffrey Grahn's alleged domestic abuse, according to a 2010 memo written by a Portland police sergeant investigating Grahn.

The 2010 memo states that Phalen asked the outside investigator to leave county prosecutors in the dark about the case, nine months before Grahn fatally shot his wife, two of her friends and then himself.

Clackamas County District Attorney John Foote said during a recent public hearing that he felt "the Grahn case was an unsolved murder."

"He's responsible, don't get me wrong," he said, "but we did not do what we were supposed to do for the family of Grahn."

In 2011, Roberts wrote the new "best practice" policy of contacting the Clackamas County DA's office in efforts to "avoid this confusion and achieve effective future communication."

"It is also my intention that until prosecution is determined, that our communications to the district attorney's office preserve the confidentiality given by Oregon law to our internal affairs records and protect the privacy of the subject employee," Roberts wrote.

Sheriff's office spokesman, Sgt. Brian Jensen, said that though Undersheriff Dave Kirby left the office after this memo, which was only sent to him and Undersheriff Matt Ellington out of an eight-person leadership team, their entire standards unit knew as well. Jensen provided Pamplin Media Group a copy of the policy, which was written into the office's operational policies and procedures.

"The Sheriff's Office DA-notification practice has been memorialized in policy since 2013 and practiced well before that time," Jensen said. "The policy has been provided to the district attorney personally and to his staff multiple times. The district attorney and Sheriff Roberts met personally in 2010 to arrive at the policy, an effort which the DA acknowledged in writing at the time."

Jensen said that since 2009, CSSO has recorded its notification of all criminal investigations into its employees to the Clackamas County DA's Office 30 times. One additional notification was made to the Washington County District Attorney's Office in 2017.

Despite the memo and policy change from Roberts, a recent independent investigation into the sheriff's office practices suggests that, in at least one case, CCSO failed to promptly tell county assistant district attorneys that a deputy was under criminal investigation.

Former CCSO Detective Jeffrey Green was charged with two misdemeanor counts of second-degree official misconduct in June 2017 after failing to investigate two reports of child abuse. However, the independent investigation found evidence indicating that Green allegedly had neglected more than 50 other cases related to alleged rape and child abuse within the past few years.

The independent investigation report stated that "once the allegations surrounding Green — who was briefly assigned to the Wilsonville Police Department before retiring in 2015 — were raised by the involved sergeant, it took almost a year before the matter was referred to an outside agency for a criminal investigation. Moreover, when the allegations involving Green initially surfaced, there was no consultation or referral of the matter to the office of the district attorney."

So, according to the investigation, Roberts' "best practice" policy, written six years before Green's charges, were not followed in that case.

Jensen said CCSO did not notify the district attorney earlier about the Green case because there was no indication criminal conduct had occurred.

"Once we learned that the conduct may have been of a criminal nature, we referred the case for criminal investigation," Jensen said.

As previously reported, Roberts said — due to a lawsuit — his attorney advised him not to attend a recent meeting of county commissioners to discuss issues at CCSO.

Foote declined comment on the issue. But during a July 10 county public hearing reviewing the independent investigation, Foote said he was disturbed by the lack of transparency Roberts has in his office.

During the discussion, Foote said he's had 11 conversations with CCSO asking them to change their practice.

"This has been eight years of this with a refusal to really change," he said. "I have never said this publicly but I'm going to tell you now, why I think that is: It's because it allows flexibility to not tell us. And not telling us is covering up misconduct that could be criminal."

Jensen said the task of investigating Green was entrusted to Milwaukie detectives after CCSO conducted a six-month-long audit of Green's cases.

"At the conclusion of the audit, we asked the Milwaukie Police Department to further investigate possible evidence of a crime," Jensen said. "We delivered the investigation to Milwaukie PD and expected Milwaukie PD to notify the DA in the course of their investigation, which they did."

At the hearing, Foote also said Roberts' failure to notify the DA when misconduct arises leaves questions and is inconsistent with typical policies of sheriff's offices that mention that they will notify the DA. With his experience in the field, Foote said he has encountered no other sheriff's office that has written its policy like Roberts has.

"The nature of this is that you don't know how many other times this happened," Foote said. "The nature of this is not to tell you."

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