Oregon Gubernatorial Impeachment Amendment (2016)

Oregon Gubernatorial Impeachment Amendment
Type	Amendment
Origin	Oregon legislature
Topic	State executive officials
Status	Not on the ballot

Not on Ballot
This measure was not put on an election ballot

The Oregon Gubernatorial Impeachment Amendment did not make the November 8, 2016 ballot in Oregon as a legislatively referred constitutional amendment. The measure would have established procedures for impeaching the Oregon Governor and other executive officials. The proposal would have allowed the state legislature to indict, try and impeach executive officials for serious crimes. The proposed process would have been comparable to the federal impeachment process.

Specifically, the measure would have empowered the Oregon House of Representatives to impeach statewide elected executive officials for "malfeasance in office, corruption, neglect of duty or other high crime or misdemeanor." At least three-fifths of all state representatives would need to vote in favor of an impeachment to deliver the resolution to the Oregon Senate. At least two-thirds of the state senators would then need to vote in favor of the impeachment resolution in order to remove the impeached official from office.

As of 2016, Oregon was the only state in the country that did not have procedures for impeaching an executive officer.

Rep. Jodi Hack (R-19) introduced the proposed constitutional amendment, titled House Joint Resolution 31, following the resignation of Gov. John Kitzhaber (D). Kitzhaber was embroiled in an ethics scandal surrounding his fiancee, Cylvia Hayes, and her work as a political advisor in his office.

This bill died in committee at the end of the legislative session and did not appear on the 2016 ballot.

Text of measure

Constitutional changes

See also: Article IV, Oregon Constitution

The proposed amendment would have added a Section 34 to Article IV of the Oregon Constitution. The following text would be added by the proposed measure's approval:

(1) The House of Representatives shall have the power of impeachment of statewide elected officials of the Executive Branch for malfeasance in office, corruption, neglect of duty or other high crime or misdemeanor. The House of Representatives may deliver a resolution of impeachment to the Senate only upon the concurrence of at least three-fifths of all Representatives elected.

(2) The Senate shall have the power to try any impeachment received from the House of Representatives. When sitting for the purpose of trying an impeachment, Senators shall swear or affirm to do justice according to law and evidence. A person may not be convicted under this section without the concurrence of at least two-thirds of all Senators elected.

(3) Judgment shall extend only to removal from office and disqualification from holding any other public office in this state. Any person convicted or acquitted under this section remains subject to any criminal prosecution or civil liability according to law.

Fiscal note

The following revenue impact statement was prepared by the Legislative Revenue Office:

“

NOTICE OF NO REVENUE IMPACT The Legislative Revenue Office has reviewed the proposed legislation and determined that it has No Impact on state or local revenues analyzed by this office.

”

Background

See also: Resignation of Oregon Governor John Kitzhaber

The proposed amendment's introduction was the direct result of the controversy surrounding Gov. Kitzhaber, which is outlined below.

Resignation of Oregon Governor John Kitzhaber

Term in office: 1995-2003, 2011-2015

Next in succession: Secretary of State Kate Brown (D)

Related pages Resignation overview February 11 story February 13 story Impeachment amendment Recall effort Cylvia Hayes Kate Brown Ellen Rosenblum Governor of Oregon Governor Vacancy process

Kitzhaber announced his resignation from office on February 13, 2015, effective February 18. The following sections detail the story surrounding Kitzhaber's resignation.

Ethics concerns before 2014 election

On October 13, 2014, Kitzhaber requested an investigation by the Oregon Government Ethics Commission into whether his fiancee, Cylvia Hayes, used her access to the governor's office to improve her consulting business. A story in the Willamette Week indicated that Hayes advised Kitzhaber about economic and energy issues while also providing consulting services in the same policy areas. On February 5, 2015, Kitzhaber announced that Hayes would no longer serve as a policy advisor following conflict of interest allegations. Oregon's government ethics regulations are designed to prevent conflicts of interest among public officials. Hayes did not receive payments from the state when advising Kitzhaber, but the governor's general counsel, Liani Reeves, noted that she was considered a public official due to her dual role as advisor and first lady.

Kitzhaber's aides said that all contracts and policy documents were reviewed prior to approval to comply with state ethics laws. Hayes stated that accusations about conflicts of interest were inaccurate and that she worked as an advisor and outside consultant to ensure "a clean economy and more sustainable future for Oregon." Dennis Richardson (R), Kitzhaber's opponent in the 2014 election, called his administration "inept and unethical."

Financial disclosures

Three ethics complaints were filed against Kitzhaber following his October 13 request, including an October 15 complaint by the Oregon Republican Party, an October 16 complaint by state Rep. Vicki Berger (R) and an October 30 complaint by 2014 Democratic primary foe Ifeanyichukwu Diru. The seven-member ethics commission held no meetings prior to the November 4 general election. A hearing in March 2015 would have determined if the commission proceeded with a formal investigation of these complaints, though Kitzhaber's resignation cast doubt about the commission's role in future investigations.

Disclosures made to the commission in January 2015 revealed $213,000 in earnings as a consultant from 2011 to 2014, including $118,000 in unreported payments from the Clean Economy Development Center. These totals were at odds with statements made by the governor and his staff as well as federal income tax documents from that period. The editorial board of The Oregonian made national news by calling for Kitzhaber's resignation on February 4, given the paper's endorsement of the governor during his previous election bids.

Emails about Genuine Progress Indicator

On February 6, 2015, the Oregon Department of Administrative Services released emails between Hayes, Kitzhaber and department director Michael Jordan regarding a new economic policy called the Genuine Progress Indicator (GPI). These emails, sent between April 2013 and April 2014, revealed Hayes' close involvement in implementing the policy. Hayes was under contract with Demos, a New York-based think tank, from June to November 2013. Hayes sent an email to Jordan requesting a meeting on May 13, 2013, to discuss challenges for the GPI, only three days after signing a contract with Demos. An email from October 30, 2013, requested $125,000 to launch the GPI and listed Hayes and Demos among the "Oregon GPI Team."

Emails from the same period showed Kitzhaber's efforts to hire Sean McGuire, an advisor under contract with Demos. McGuire had previously worked with Demos to install the GPI, a measurement of economic progress that takes into account well-being and productivity, in Maryland. On December 30, 2013, Kitzhaber lobbied Jordan to hire McGuire, indicating that he was the "best person to do this work...and we need to find a way to bring him on." McGuire was hired in spring 2014 for a one-year contract totaling $65,000, though Jordan downplayed suggestions that Kitzhaber pressured him into the decision.

Investigation by Attorney General

Oregon Attorney General Ellen Rosenblum (D) announced on February 9 that she was initiating a criminal investigation of Kitzhaber and Hayes. She announced the investigation on the same day as Kitzhaber publicly requested a criminal investigation of his administration. The attorney general's office has the ability to request records, issue subpoenas to witnesses and charge the governor and his advisors with illegal activity. Rosenblum delayed an investigation because she was concerned about her office's role as attorney for the executive branch, though former state officials argued that she was responsible for investigating corruption within the branch. Republican legislators including Ted Ferrioli supported the investigation, but argued that a special prosecutor should be appointed to eliminate concerns about Rosenblum's objectivity in dealing with a fellow Democratic official.

On February 20, defense attorney Janet Hoffman sent a request to halt review of Kitzhaber's emails by the attorney general until she had an opportunity to evaluate the documents. Hoffman argued that the former governor's personal emails were co-mingled with official emails without his permission. She also argued that DAS did not "legitimately possess" personal emails, invalidating the documents from becoming evidence in state or federal investigations. Hoffman also requested an independent investigation into leaks of Kitzhaber's emails to Willamette Weekly and The Oregonian.

The state ethics commission suspended its investigation on February 11.

Speculation about resignation

On February 11, local and national media speculated that Kitzhaber could resign from office. The governor canceled a Valentine's Day appearance with Tigard-based Friends of Trees on that day. The head of Friends of Trees, Scott Fogarty, noted that the plans were tentative and saw no connection with ongoing ethics concerns. Jim McDermott, an attorney representing Kitzhaber, told reporters on the 11th that the governor had no intention of resigning. Kitzhaber confirmed McDermott's statement later in the day in an interview with The Statesman Journal.

Secretary of State Kate Brown (D) also stoked speculation by ending a trip to Washington, D.C., two days early to return home on the 11th.

Kitzhaber denies intent to resign

Late in the day on February 11, Kitzhaber issued an official statement denying that he had any intention of resigning: "Let me be as clear as I was last week, that I have no intention of resigning as Governor of the state of Oregon."

Sources report Kitzhaber change-of-heart

On February 12, multiple outlets reported that Kitzhaber told aides on the 8th that he would resign, requested Brown's return to Salem and met with legislative leaders on the 10th before reconsidering resignation on the 11th.

Kate Brown's February 12 statement

Brown issued a statement in the mid-afternoon on February 12 saying that her return to Oregon on February 11 was requested by Kitzhaber but that when she returned and met with him, he asked her why she had returned to the state. She described this back-and-forth as "bizarre."

The following is Brown's full statement:

“

Late Tuesday afternoon, I received a call from the Governor while I was in Washington, DC at a Secretaries of State conference. He asked me to come back to Oregon as soon as possible to speak with him in person and alone. I got on a plane yesterday morning and arrived at 3:40 in the afternoon. I was escorted directly into a meeting with the Governor. It was a brief meeting. He asked me why I came back early from Washington, DC, which I found strange. I asked him what he wanted to talk about. The Governor told me he was not resigning, after which, he began a discussion about transition. This is clearly a bizarre and unprecedented situation. I informed the Governor that I am ready, and my staff will be ready, should he resign. Right now I am focused on doing my job for the people of Oregon.

”

Legislative leaders, treasurer call for resignation

On the same afternoon as Brown's statement, Senate President Pete Courtney (D), House Speaker Tina Kotek (D) and State Treasurer Ted Wheeler (D) called on Kitzhaber to resign from office. The trio announced their support for Kitzhaber's resignation following an emergency caucus of state Democrats. Wheeler made the following statement to The Oregonian:

“	It is with deep sadness that I ask Governor John Kitzhaber to resign his position as Governor of Oregon. He has accomplished many great things during his long career, and history will be kinder to him than current events suggest. Unfortunately, the current situation has become untenable, and I cannot imagine any scenario by which things improve. Oregon deserves a Governor who is fully focused on the duties of state. I hope the Governor will do the right thing for Oregon and its citizens.	”
—The Oregonian, (2015)

Attempted deletion of personal emails

A records request by Willamette Week and 101.9 FM KINK in Oregon found that the governor's office ordered the deletion of emails from Kitzhaber's personal account on February 5. The order, sent by executive assistant Jan Murdock, asked for all messages in Kitzhaber's personal email to be removed from servers. Several supervisors at the Department of Administrative Service's Technology Support Center refused to comply with the order. Any personal emails used to discuss government business would be considered public records according to the state's open records laws.

Attorney general order for Hayes emails

On February 12, Rosenblum ordered Hayes to deliver personal emails related to state business to The Oregonian following a public records request by the newspaper on December 29, 2014. Attorney Whitney Boise, speaking on behalf of Hayes, argued to Rosenblum that his client's emails were private because she was not a public official. This claim was rejected by Rosenblum's office, which issued the order based on the fact that Hayes worked "extensively on government matters." Hayes had to comply with the attorney general's order or seek an injunction by February 19.

February 13 resignation

Kitzhaber announced his resignation from the governor's office on the morning of Friday, February 13. His resignation became effective on Wednesday, February 18. In a statement to the media, Kitzhaber stated:

“	I am announcing today that I will resign as Governor of the State of Oregon. It is not in my nature to walk away from a job I have undertaken – it is to stand and fight for the cause. For that reason I apologize to all those people who gave of their faith, time, energy and resources to elect me to a fourth term last year and who have supported me over the past three decades. I promise you that I will continue to pursue our shared goals and our common cause in another venue. I must also say that it is deeply troubling to me to realize that we have come to a place in the history of this great state of ours where a person can be charged, tried, convicted and sentenced by the media with no due process and no independent verification of the allegations involved. But even more troubling – and on a very personal level as someone who has given 35 years of public service to Oregon – is that so many of my former allies in common cause have been willing to simply accept this judgment at its face value. It is something that is hard for me to comprehend – something we might expect in Washington, D.C. but surely not in Oregon. I do not know what it means for our shared future but I do know that it is seriously undermining civic engagement in this state and the quality of the public discourse that once made Oregon stand out from the pack. Nonetheless, I understand that I have become a liability to the very institutions and policies to which I have dedicated my career and, indeed, my entire adult life. As a former presiding officer I fully understand the reasons for which I have been asked to resign. I wish Speaker Kotek and President Courtney and their colleagues on both sides of the aisle success in this legislative session and beyond. And I hope that they are truly committed to carrying forward the spirit of bipartisanship and collaboration that has marked the last four years in Oregon.	”
—Oregon Public Broadcasting, (2015)

Federal subpoena

Copy of subpoena available here

On February 12, federal prosecutors issued a subpoena to the Department of Administrative Services for emails and records from Kitzhaber, Hayes and other members of the outgoing administration. The subpoena also sought records of payments to Hayes and her firm, 3E Strategies. All subpoenaed documents were presented to a federal grand jury scheduled to convene on March 10.

Federal prosecutors end investigation with no criminal charges

On June 16, 2017, federal prosecutors ended the investigation into Kitzhaber and Hayes without pressing criminal charges. The investigation involved the U.S. Attorney's Office for Oregon, the FBI, and criminal divisions of the Justice Department and the IRS.

On June 20, 2017, the Oregon Government Ethics Commission restarted its investigation, which had been suspended in February 2015.

Ethics commission finds violation of state ethics laws

In November 2017, the ethics commission released a preliminary report outlining four counts of state ethics violations. The commission and Kitzhaber negotiated an agreement to fine Kitzhaber $1,000 for three violations. Commissioners rejected the agreement 7 to 1.

On January 5, 2018, the ethics commission unanimously voted that Hayes violated state ethics laws 22 times.

Second ethics commission report and vote

The Oregon Government Ethics Commission released a second report on February 14, 2018, expanding Kitzhaber's violations of state ethics laws from four to 11: seven counts of conflicts of interest, three counts of misuse of office for financial gain, and one count of improper gift receipt.

On February 16, the ethics commission voted unanimously that Kitzhaber committed 10 of the 11 ethics violations detailed in the report. The commission dropped one alleged violation—allowing a staff member to care for Hayes’ pets.

Before the commission's vote, Kitzhaber acknowledged responsibility for 10 out of 11 alleged violations but disputed that he had used his public office for personal gain.

Ethics violations can result in up to $5,000 in fines per violation if there is no appeal or settlement. An appeal would go to the state Office of Administrative Hearings. If the results were still disputed, an appeal would go to the Oregon Court of Appeals and then to the Oregon Supreme Court.

On March 28, 2018, Kitzhaber agreed to pay a $20,000 fine in a negotiated settlement.

Support

Rep. Jodi Hack (R-19) proposed the amendment

The proposed ballot measure was introduced into the Oregon Legislature by Rep. Jodi Hack (R-19).

Supporters

The following legislators are sponsoring the amendment:

• Rep. Jodi Hack (R-19)
• Rep. Wayne Krieger (R-1)
• Rep. Dallas Heard (R-2)
• Rep. Carl Wilson (R-3)
• Rep. Duane A. Stark (R-4)
• Rep. Sal Esquivel (R-6)
• Rep. Cedric Hayden (R-7)
• Rep. Caddy McKeown (D-9)
• Rep. John Lively (D-12)
• Rep. Val Hoyle (D-14)
• Rep. Andy Olson (R-15)
• Rep. Sherrie Sprenger (R-17)
• Rep. Paul Evans (D-20)
• Rep. Mike Nearman (R-23)
• Rep. Jim Weidner (R-24)
• Rep. Bill Post (R-25)
• Rep. John Davis (R-26)
• Rep. Jeff Barker (D-28)
• Rep. Joe Gallegos (D-30)
• Rep. Brad Witt (D-31)
• Rep. Jennifer Williamson (D-36)
• Rep. Julie Parrish (R-37)
• Rep. Bill Kennemer (R-39)
• Rep. Brent Barton (D-40)
• Rep. Rob Nosse (D-42)
• Rep. Lew Frederick (D-43)
• Rep. Alissa Keny-Guyer (D-46)
• Rep. Jessica Vega Pederson (D-47)
• Rep. Chris Gorsek (D-49)
• Rep. Shemia Fagan (D-51)
• Rep. Mark Johnson (R-52)
• Rep. Gene Whisnant (R-53)
• Rep. Knute Buehler (R-54)
• Rep. Mike McLane (R-55)
• Rep. Gail Whitsett (R-56)
• Rep. Greg Smith (R-57)
• Rep. Greg Barreto (R-58)
• Rep. John E. Huffman (R-59)
• Rep. Cliff Bentz (R-60)
• Sen. Jeff Kruse (R-1)
• Sen. Jackie Winters (R-10)
• Sen. Brian Boquist (R-12)
• Sen. Kim Thatcher (R-13)
• Sen. Tim Knopp (R-27)
• Sen. Doug Whitsett (R-28)
• Sen. Ted Ferrioli (R-30)

Arguments

Rep. Jodi Hack, referring to the resignation of Gov. Kitzhaber, contended:

“	Oregonians deserve the highest levels of transparency, oversight and accountability from their elected officials. As we move forward from this unfortunate moment in our state's history, we need to ensure that we have a bipartisan formal mechanism in place to maintain the integrity of the Governor's Office.	”
—Rep. Jodi Hack

She elaborated on why she introduced the amendment in testimony before the House Rules Committee:

“	In light of recent events, the people of Oregon, my constituents in particular, began to ask some serious questions about accountability. One of those questions was: if needed, could Oregon impeach a member of the executive branch? Currently, Oregon is the only state in the country without a process for impeachment. The need for accountability and transparency in government is always essential. The people of Oregon have lost faith in their government and elected leaders and it is up to us ensure future accountability and rebuild trust in their elected leaders. My constituents and yours need to know we take these matters seriously. This resolution is a tool for accountability of the executive branch. It gives Oregonians the ability through the legislative body to hold those in power accountable. This resolution is not a weapon and should never be used as such. It is constructed in a manner that provides for a difficult yet fare process of impeachment if ever needed - and we all hope it is never needed. We must be thoughtful but diligent in creating checks and balances that create accountability. I believe this resolution is thoughtful and serves to join our fellow fortynine states. It will allow Oregonians the opportunity to vote on a Constitutional amendment giving them the opportunity to decide whether or not they want this form of accountability for the executive branch.	”
—Rep. Jodi Hack

Opposition

Arguments

• Rep. Mitch Greenlick (D-33) argued that the amendment would give the legislature too much power. He also said social pressure is sufficient in getting an executive official to resign. He stated, "Kitzhaber pointed out you don't need the (impeachment) process. It wasn't impeachment that did it. It wasn't recall that did it. He was in enough trouble that he felt he couldn't effectively serve, and he resigned."

Media editorials

Support

• Mail Tribune said, "Still, it is possible to imagine a situation in which a sitting governor or other official refused to step down in the face of alleged wrongdoing. Putting an impeachment process in the Oregon Constitution would provide some leverage to force that departure if necessary — and it would help restore some trust in state government even if it is never used."

Path to the ballot

See also: Amending the Oregon Constitution

The legislative procedures for placing a constitutional amendment on the ballot are outlined in Section 1 of Article XVIII of the Oregon Constitution. In order to get an amendment placed on the ballot, the "majority of all the members elected to each of the two houses" of the legislature must vote in favor of the amendment.

The legislature has the ability to place legislative referrals on special election ballots, rather than waiting for a general election to occur.

Rep. Jodi Hack (R-19) introduced House Joint Resolution 31 on March 4, 2015. The amendment was approved by the Oregon House of Representatives on May 19, 2015, with 47 representatives voting "yea" and 12 voting "nay."

This bill died in committee at the end of the legislative session and did not appear on the 2016 ballot.

The Oregonian predicted HJR 31 would likely die in the Oregon Senate. The chamber's Democratic leadership appeared to be opposed to the amendment. A spokesperson for Senate Majority Leader Diane Rosenbaum (D-21) said, "There are no plans to schedule the bill." Senate President Peter Courtney voiced his opinion on the measure, contending, "Oregon voters have the ultimate right of impeachment through the recall process and they aren't shy about using it."

See also

Suggest a link

• 2016 ballot measures
• Oregon 2016 ballot measures
• Oregon Legislature
• Oregon Governor
• Resignation of Oregon Governor John Kitzhaber

External links

• House Joint Resolution 31

Additional reading

• The Oregonian, "Oregon lawmaker proposes ballot measure on impeachment," February 18, 2015