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The Oregon Department of Justice this morning released the draft legal opinion that bought clarity to a simmering disagreement at the state Land Board, the three-member panel that makes decisions about state-owned lands, including more than 500,000 acres of state property and the banks and bottoms of Oregon's navigable rivers.
The issue arose in October, when Secretary of State Dennis Richardson informed his colleagues on the Land Board, Gov. Kate Brown and state Treasurer Tobias Read, that he intended to delegate his position on the board to Deputy Secretary of State Leslie Cummings while he battled brain cancer.
Richardson cited Oregon laws that he argued allowed him to make such a decision.
That proposal troubled Richardson's colleagues. The Land Board often deals with weighty and controversial issues, such as the board's current consideration of whether to sell the Elliott State Forest. Read's office asked the Oregon Department of Justice for a legal opinion on whether Richardson could in fact delegate his position on the board. Since mid-October, no answer has been forthcoming. (Disclosure: Attorney General Ellen Rosenblum, who directs the DOJ, is married to Richard Meeker, the co-owner of WW's parent company.)
But on Monday, the day before the Land Board's Dec. 18 meeting, Steve Elzinga, Richardson's legal affairs director, sent an email to the other land board members and Vicki Walker the director of the Division of State Lands.
"Secretary Richardson has decided to withdraw the delegation below. As you all know, the Land Board has received verbal advice from the Attorney General disagreeing with part of this delegation," Elzinga wrote. "Although our office has a different perspective on this, Secretary Richardson does not want to waste taxpayer resources on a lengthy legal fight to vindicate his rights as a member of the Land Board."
Typically, the DOJ, which provides legal advice to state agencies and represents them in litigation, is reluctant to share its advice to those agencies, citing attorney-client privilege. In this case, Elzinga paraphrased the ruling in his email to the Land Board and so today, DOJ released the draft opinion.
In response to the question of whether Richardson could delegate his position on the Land Board, DOJ provided this answer:
"No," the draft opinion says. "The Oregon Constitution provides that 'The Governor, Secretary of State and State Treasurer shall constitute a State Land Board.' A body comprised of the Governor, Deputy Secretary of State, and Treasurer is not the State Land Board. Because the Secretary of State does not have the authority to change the composition of the State Land Board, the Secretary may not delegate authority in a way that effectively accomplishes that result."
In legal terms, "shall" means "must" and is not conditional. Richardson attended the meeting by phone.