Deschutes Commissioners-Flaherty Flap Heats Up
The months-long dispute between Deschutes County District Attorney Patrick Flaherty and other county officials intensified this week as two lawyers representing county commissioners told the Oregon State Bar they believe he may have proceeded with an investigation of county workers’ actions despite a conflict of interest and may have committed first-degree official misconduct by convening a grand jury earlier this year.
Flaherty issued a news release late Friday saying he?d just learned of the letter, which he said ?appears to be a more sophisticated rendition of the anonymous bar complaint? filed against him in late March, alleging the grand jury action was part of a personal vendetta against county Legal Counsel Mark Pilliod.
?I am disappointed that none of the county commissioners asked to speak with me about their concerns before taking this unusual action,? Flaherty said.
The issue, then and now, revolves around Pilliod?s release of private information such as addresses of Flaherty?s newly hired deputy DAs in response to a public records request by The Bulletin for background information. Several county workers and a Bulletin reporter were subpoenaed to appear before the grand jury.
The DA also said he?d just learned Pilliod filed a tort claim notice with the state, saying he intends to file suit over the grand jury investigation of his conduct in disclosing the personnel file information.
Flaherty had convened the grand jury to investigate whether Pilliod committed official misconduct by his actions, but ended that investigation when he and Pilliod agreed to a settlement in the spring.
?Because these matters are pending before the Oregon State Bar or before the court, I am not able to comment further at this time, except to say that I have great confidence the truth will prevail,? Flaherty wrote.
In their letter to Jeffrey Sapiro, chief disciplinary counsel for the Oregon State Bar, attorneys William F. Gary and Dave Frohnmeyer lay out the sequence of events and cite case law in areas such as potential conflict of interest.
?Based on the principles expressed in these cases, and assuming the facet as described above are accurate, the commissioners are concerned that Mr. Flaherty may have had a personal interest as a victim of the alleged wrongdoing that conflicted with his duty to the state of Oregon to administer justice in an even-handed and unbiased manner,? the letter said.
The letter also says one of Flaherty?s subpoenas, to IT Director Joe Sadony, directed he was not to share with anyone the fact he was subpoenaed, and Sadony interpreted that to mean he could not talk with county legal counsel.
The lawyers said they are ?not aware of any legal authority? Flaherty would have to prevent such contact, and that as a result, Sadony turned over ?a substantial volume of data” outside the scope of the grand jury investigation or protected by attorney-client privilege.
?In the commissioners? view, Mr. Flaherty?s conduct caused substantial harm or injury to the administration of justice,? the letter states.
The lawyers note that Pilliod wrote to state Attorney General John Kroger last October, raising legal questions about Flaherty’s plans to fire deputy DAs and whether doing so to two officers of the newly formed union “could give rise to a claim for retaliatory discharge.”
The commissioners’ lawyers said Flaherty and Pilliod “sparred” in letters to the board about whether the bargaining agreement then being negotiated would bind the DA’s office. Flaherty also suggested Pilliod had violated the state’s rules of professional conduct by purporting to represent both the county and the DA’s office in those negotiations.
The “contentious and open disagreements” between the two men included “accusations about potential violations of the ethical rules,” the letter says.
“The commissioners believe these facts support an inference that Mr. Flaherty acted with the intent to harm Mr. Pilliod,” the letter says. “Accordingly, Mr. Flaherty may have committed official misconduct in the first degree.”
The letter also noted Flaherty’s “personal animosity toward Mr. Pilliod” and claims the DA “persisted in using the grand jury to satisfy his grudge, even after questions arose about whether it was proper for him to do so.”
Kateri Walsh, a spokeswoman for the Oregon State Bar, said Friday that when the disciplinary counsel concludes its investigation, it would either dismiss the matter or take it to the State Professional Responsibility Board, which functions much like a grand jury.
“They have to authorize formal charges in order for us to prosecute,” Walsh wrote. “So we would seek authorization if we felt the evidence of an ethics violation was there. SPRB would direct us to dismiss, authorize charges, or send us back with further questions to investigate.”
As for timing, Walsh said it’s “some weeks away at a minimum before we get to SPRB stage – they meet once a month. If there is a lot of back-and-forth correspondence it could be several months” before that point is reached.
