Defending the Whistle-Blower

Last week's cover story detailed how Rodgers, head of the Oregon state government data center, prevented Kitzhaber's office from deleting the emails while the governor and first lady Cylvia Hayes faced a criminal investigation into alleged influence peddling.

Rodgers then made a copy of the emails and gave them to WW, believing someone in state government could still  find a way to delete the records at the behest of Kitzhaber’s office (“The Whistle-Blower,” WW, May 27, 2015).

Today, Rodgers is on paid leave and faces an Oregon State Police investigation. Kitzhaber's attorney has urged Rodgers be prosecuted. Some people have said Rodgers should be fired.

Far more—judging from the volume of supportive online comments on WW's story—have called him a hero for risking his $143,000-a-year job to protect the Kitzhaber emails. The Salem Statesman Journal and The Register-Guard in Eugene printed editorials in support of Rodgers' actions.

Now Rodgers' ultimate boss, Gov. Kate Brown, has weighed in. In an interview with WW, Brown said Rodgers shouldn't face criminal charges.

"I think it's fair to say this decision was an extraordinary act made in an extraordinary situation," Brown said, in comments first reported on wweek.com. "It was something he did based on the lack of trust in the system around him. His intentions were good."

"Instead of wasting public resources and time in pursuing criminal charges in this case," she added, "we need to focus our resources on building trust and accountability in state government."

Brown's comments alone won't stop police and prosecutors should they choose to charge Rodgers with a crime. 

Before Kitzhaber resigned Feb. 18, his staff claimed the emails his office sought to delete were personal and had ended up on state computers accidentally.

But there were two big problems with that explanation.

First, Rodgers could see Kitzhaber was using his personal email account to conduct government business. The emails showed the governor dealing with the state budget, school finance, environmental issues and the failed, $300 million Cover Oregon website. 

Chuck French, a retired Multnomah County deputy district attorney who reviewed public records requests for years, says Rodgers simply provided information that belonged to everyone. "These are public records," French says. "There's no question about that because they were stored on public computers."

Second, Kitzhaber's aides claimed they had no idea his personal emails were stored on state computers. But records obtained by WW show that wasn't true.

On Feb. 14, 2011, records show, Kitzhaber assistant Jan Murdock asked a state computer technician to "set up governors personal laptop for Gmail." The next day, that technician, Tracy Osburn, noted in an email he had "connected [Microsoft] Outlook to [Kitzhaber's] personal Gmail account."

On Aug. 5, 2011, another Kitzhaber staffer, Leslie Roth, sent a second request to Osburn. The work order asked techs to "set up archiving for the GOV's personal gmail account…. We need to set up Gmail to be able to send all correspondence to a state email for archiving."

“Archiving is working OK,” Osburn responded three days later. 

PROSECUTORS HAVE THREATENED TO charge Rodgers with official misconduct, a misdemeanor. It's the criminal charge most often brought against public officials caught exploiting their position for personal gain.

But Rodgers neither sought nor received any personal gain from leaking the emails.

Oregon Criminal Justice Commission records show that in the past five years, prosecutors have charged only two people with official misconduct in which there was no allegation of personal gain.

"It's extremely unusual," says Clatsop County District Attorney Josh Marquis says. "Because of the resources involved, it just doesn't happen very often."

In both cases, prosecutors failed to win a conviction.

IT'S NOT CLEAR WHAT DIFFERENCE Brown's statement questioning the value of pursuing a criminal case against Rodgers might make. She says she won't interfere with the investigation, and by law the governor has no authority over prosecutors.

Still, her comments themselves were extraordinary—a governor weighing in on an open criminal case involving the unauthorized release of another governor's emails.

But the Rodgers case is unique. Brown took office when Kitzhaber resigned, the first Oregon governor to do so amid scandal in modern state history. And he did so the day after WW reported Kitzhaber's office had sought to delete the emails.

Upon taking office, Brown immediately called for stronger ethics laws and more government accountability.

In a March 24 letter to state workers, Brown praised the employees who prevented the deletion of Kitzhaber's emails. "I appreciate the good judgment these individuals demonstrated," she wrote.

Brown—and everyone else—now knows the employee's name, and with her comments she's navigating a difficult path. 

Rodgers is under pressure to resign for his actions. And Brown doesn't want to be seen as encouraging the state's 40,000 employees to leak records to the media.

"State government has an obligation to safeguard data," Brown tells WW. "It doesn't matter what the data is, it's still a data breach. A breach is a breach."

Still, Brown says she regrets that Rodgers felt he had no other choice. 

"I'm sorry that he was operating in a state agency and in a state government where he couldn't trust his supervisors," she adds. "I'm hoping that under my leadership, that has changed.” 

Rodgers and his lawyers believe Oregon's whistle-blower law offers him protection, but he was pleased with the governor's stance.

"I am grateful to the governor, members of the Legislature and citizens of Oregon who have publicly supported me," Rodgers said in a statement. "My hope is that this promotes transparency in government, and does not have a chilling effect on future whistle-blowers.” 

WWeek 2015