Gov. Brown's lawyer Isaak declines appeals court post
Gov. Kate Brown's top lawyer said Tuesday he was turning down a plum judicial post after an outgoing state advocate for government transparency said he tried to exert undue influence over her work.
Public Records Advocate Ginger McCall's Sept. 9 resignation turned the spotlight on Misha Isaak, whom Brown had just appointed to the Oregon Court of Appeals.
Isaak is declining the appointment, Brown announced Tuesday.
"I have worked hard to earn a professional reputation beyond ethical reproach," Isaak wrote in a Sept. 17 letter to Brown. "I am not willing to accept further damage to my reputation that could arise from joining the bench under a cloud of controversy. I have therefore decided to decline the appointment to the Court of Appeals."
Brown didn't ask him to withdraw, according to her office. His decision comes after public criticism of his role in the public records controversy and his path to the court appointment.
"My understanding is because it creates a cloud over his appointment," Brown said in an interview with the Oregon Capital Bureau, as to the reasons for the decline. "And he values the integrity of the court, as do I."
Last year, Brown appointed McCall to be the state's first public records advocate, charged with resolving disputes between those seeking government documents and public officials. The advocate also trains public officials on the state's complex public records law.
The post was created by state law in 2017 through legislation Brown proposed. McCall resigned after 18 months on the job, blaming unacceptable influence from the governor's office, and specifically identified Isaak.
"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 in her resignation letter to Brown. "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. I believe these actions constituted an abuse of authority on the part of the general counsel, and are counter to the transparency and accountability mission that I was hired to advance."
McCall then released detailed memos of her meetings with Isaak and Brown's government accountability attorney, Emily Matasar.
A 'consistent process'
The governor said Tuesday that members of her executive team had spoken to Isaak about his conversations with McCall, but said she didn't know if Isaak faced discipline.
Brown said she is changing how she handles appointments to judgeships in the future. She has so far appointed two of her gubernatorial staff to court positions and Isaak would have been the third.
Now, she said, each court vacancy will be announced publicly, her office will ensure there is a "consistent vetting process for every candidate," and she will "continue to communicate with local judges and the bar about the appointment," she said.
"I think it's fair to say that we did not have a consistent process," Brown said. "I think that's true for all of the governors. I know governors who have appointed a variety of folks from a variety of positions. The governor has full appointing authority under the constitution. What I think is important is that we ensure the integrity of the judiciary and that we have a fair and consistent vetting process, and that's what I'm committed to providing."
In the interview, Brown praised McCall's work and said she wished McCall was staying on to be involved in conversations about reforms.
"She was new to Oregon," Brown said. "She worked hard to get this system up and running. She did an excellent job and I was really pleased with the focus of her work."
Asked about the perception that her office was trying to influence McCall, Brown claimed, however, that McCall "didn't know how Oregon state government worked."
"Look, this was a new agency, right?" Brown said. "It was a brand new agency, Ginger was new to the state. She didn't know how Oregon state government worked, how I do a budget, right, those pieces."
Those remarks echoed what McCall documented she was told earlier in the year by Isaak.
Brown also maintained she didn't realize the extent of McCall's concerns about the independence of the advocate's office. McCall and open government advocates have stressed the importance of independence.
Oregonians needs to trust that the public records advocate will be objective in responding to their requests for help in dealing with government agencies, including in state government, McCall said in an interview last week.
McCall also disclosed memos in which she outlined concerns about funding for the public records operation.
Brown said she knew "there was an issue around the budget and how that process worked" but said she didn't remember when that came to her attention.
"I wish I had known of her concerns," Brown said. "We would have addressed them. And clearly, she did not feel comfortable doing that. I hear that. But I wish I'd known. Because these are very legitimate and important conversations to be having."
Brown said in a Sept. 17 statement that she looked forward to "supporting the changes the Public Records Advisory Council proposes to improve the independence of the office of the Public Records Advocate." The council voted to seek legislation to make clear the advocate and the council were independent, and to make the council instead of the governor the hiring authority for the advocate.
HERE IS THE GOVERNOR'S STATEMENT ON THE PUBLIC RECORDS ADVOCATE AND JUDICIAL APPOINTMENTS
"There is a need for resolution on the separate but related issues of the Public Records Advocate's resignation and my recent selection of the Governor's General Counsel for the Court of Appeals vacancy.
"First, let me say that while there has been misunderstanding in and around both processes, I deeply regret that controversies have been created and acknowledge that I am ultimately accountable. I see now that the structure of the Advocate position, which I supported, was flawed from the beginning. Given their policy roles, the Advocate and the Public Records Advisory Council could not be truly independent as long as they were overseen by the Governor's office, or any other elected official for that matter. Under this structure, any meaningful supervision had the potential to be seen as politically-motivated meddling, even if it was not intended that way.
"Through my years in leadership positions, I've come to realize that in politics, a discussion of fault often knows no boundaries until someone takes responsibility for making sure the right thing happens. I am taking that responsibility. As Governor, I want to restore focus on what matters most, which is openness in government.
"I've met personally with Ginger McCall to express my regret at her resignation, and to hear her thoughts on how to reinforce the strength of the public records advocate position and better serve the transparency process. I proposed the concept of a Public Records Advocate in 2017, and I am a strong believer in the principles behind its creation.
"This is a new position, and the Legislature and my office have clearly struggled with how to implement it within the current system of state government. In view of this experience, I think it is safe to say we can do much better, and the people of Oregon deserve to know that we take their trust seriously.
"In demonstration of my commitment to public transparency, I look forward to supporting the changes the Public Records Advisory Council proposes to improve the independence of the office of the Public Records Advocate, including efforts to ensure the position is not directly overseen by any elected official, or in any way overseen by the Executive branch but by the Council itself.
"This morning I received Misha Isaak's letter declining his appointment to the Oregon Court of Appeals. I have come to know Misha for his personal and professional integrity, and he has only reinforced that in making this decision. He is an excellent lawyer and a valued member of my team.
"With respect to questions raised about the appointment of judges, I am working on developing a policy to standardize our process. In the future, the Governor's office will announce any vacancies on the Oregon bench publicly and will clearly communicate the process we will follow in reviewing candidates for any judicial positions. I am very proud of my record of building a judiciary that reflects the diversity of the people of Oregon, with the highest level of character and legal excellence."
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