Wasco County Thursday filed a motion in circuit court seeking to cancel a grand jury subpoena issued last November by District Attorney Eric Nisley, contending it was improperly issued and legally invalid.
Nisley said the motion — which is designed to prevent the fulfilling of a subpoena — is “double moot” because the subpoena has already been fulfilled and he already returned to the county the thumb drive that he obtained with the subpoena.
Nisley said the motion seemed designed for newspaper consumption, rather than legal purposes.
The thumb drive contained emails between county employees. The county and Nisley disagree on whether it also included county commissioner emails. Nisley says it doesn’t, the county says it does.
Nisley noted the emails are public record. The motion to quash said some of the emails likely fall under attorney-client privilege, and noted that when Nisley returned the thumb drive, he offered only a copy, and kept the originals for his continued use.
Nisley said what he received was a copy, while the county had the originals.
The county commission authorized county counsel Brad Timmons to pursue the motion to quash at a meeting on May 20.
In an Oregon State Bar complaint that Timmons said he filed on behalf of the county, he said the subpoena was part of what he alleged was a retaliatory investigation against a county employee.
Timmons alleged the county employee rebuffed Nisley’s request for sex at a conference in 2011. Nisley said that matter was a tasteless joke he regretted and for which he had apologized.
The investigation, begun last winter, concerned two financial transactions made by the county employee. Nisley referred the investigation to the Oregon Department of Justice on Dec. 15, 2014. In mid-March, the DOJ was about to issue a report finding no wrongdoing in the matter, when Nisley told the DOJ he was “taking back” the case, the bar complaint alleged.
When the investigation began, Nisley issued a Nov. 7, 2014, subpoena to Wasco County Information Technology Interim Director Paul Ferguson, directing him to give Nisley emails between county commissioners Scott Hege, Rod Runyon and Steve Kramer, Wasco County Administrative Officer Tyler Stone, the county employee who is the subject of the investigation, and another employee.
Nisley said that because there is no criminal case at hand, there is no basis for a motion to quash, or cancel, the subpoena.
In the motion to quash, Timmons said the subpoena, listed as “the state of Oregon vs. John Doe,” didn’t follow standard form, did not name a defendant, was served by Nisley’s own staff, had no pending case number, had no subject or date limitation on the emails sought, and contained express instructions that it be kept a secret from everyone, including county officials.
The motion said the subpoenaed documents were not presented to the grand jury, but directly to Nisley. It also noted the subpoena was served on the IT director, not on the county clerk, who is the custodian of county records.
The motion alleges the subpoena was “carefully tailored” to “eliminate grand jury review or a challenge to the grand jury subpoena.”
Timmons told Haystack Broadcasting Friday that “no one I have talked to in law enforcement has ever seen a subpoena like the one issued by Mr. Nisley.”
Nisley responded, “We serve subpoenas like the one above every week, on behalf of law enforcement.”
Nisley said he serves subpoenas on “John Does” regularly and his staff also serves subpoenas. He said case numbers aren’t assigned to a matter until charges are made, and the original subpoena was overbroad and he later narrowed it to exclude emails between the county commissioners.
He said it is common to tell recipients of subpoenas to keep the matter secret.
The documents attached to the motion show that the DOJ referred to the matter as an investigation of the department head. Nisley has told both the county and the Chronicle earlier that the investigation is not of that department head. He said he stands by his earlier comments.
The motion contends Nisley “effectively circumvented the role of the grand jury system by undertaking and continuing his own unfocused, unrestrained, vague, ongoing, undisclosed criminal investigation.”
The motion also contends Nisley’s actions “trample the lines of demarcation of power between executive and judicial branches” — or the role of the district attorney working on behalf of a grand jury — and is an “alarming example of government action impacting people’s liberty.”
Nisley responded, “County Counsel Timmon’s rhetoric appears to be drafted so that the newspaper will print it. Any responses to legal arguments will be in the courtroom.”
Nisley also contended Timmons released the motion to quash to the Chronicle before Nisley received it.
Timmons said “we served him within five minutes after filing with the court, and before we gave a copy to the Chronicle.”