A judge who signed an order quashing, or canceling, a 2014 subpoena issued by the Wasco County district attorney seeking certain county emails said she “had concerns” about the subpoena at a December hearing.
Seventh District Circuit Court Judge Karen Ostrye said, “I have concerns about the issuance of the subpoena for the reasons that have been stated,” then added, “and I don’t think this is the first time this issue has come up.”
Wasco County District Attorney Eric Nisley said he didn’t object to the quash order because he had already returned all materials obtained under the subpoena, so he considered the matter moot. He questioned why thousands of dollars of county money was being spent on legal fees to pursue the matter.
Nisley sought emails of three employees — and the county commissioners — as he investigated a “misuse of funds” regarding two small cash loans made to an employee in 2013. The county calls the cash payments a draw.
Once Nisley was told the volume of emails with the commissioners included, he said he narrowed it to the three employees, and never received any commissioner emails.
Wasco County’s attorney, Brad Timmons, argued the subpoena was illegal because it was issued without a grand jury proceeding, without a specific defendant, and without a judge’s oversight.
Nisley argued such subpoenas for documents are commonplace.
Nisley subpoenaed the county’s information technology
director, Paul Ferguson for the emails.
The subpoena directed Ferguson to tell no one about it, and the county only learned about the subpoena awhile after Ferguson had already turned over the emails.
Timmons argued if the subpoena was submitted correctly, with the DA seeking a search warrant from a judge, and the subpoena was given to the proper person at the county — the county clerk is the official custodian of records — the county would have had the opportunity to object to releasing sensitive emails, such as those dealing with labor negotiations.
While Timmons argued the county was not notified of the subpoena, Nisley argued it was notified, through Ferguson, and Ferguson voluntarily complied with the subpoena.
Timmons focused on the fact that the first line of the subpoena says, in all capital letters, “you are commanded” to appear before a grand jury. Lower down, the subpoena uses milder language and says he is “requested” to furnish the emails.
Nisley said, “I never said, ‘I’m county counsel, you have to give this up’… he could have easily done anything he wanted to do with that subpoena. He could have gone to his supervisor, whatever he wanted to do. Obviously he did, because he didn’t keep it secret forever.”
Ostrye focused on the fact that Ferguson was told not to tell anyone.
She noted that the subpoena “says he is required not to disclose the existence of this request to any person. So how — is Paul Ferguson a lawyer?”
“No,” Nisley said.
“Ok,” Ostrye said, “and so is your argument that he should have known that this was a voluntary request, but he’s not allowed to disclose the existence of the request to find out the answer to the question that may or may not have existed in his mind?”
Nisley said, “I’m not arguing that at all. I’m just simply saying that the fact that it was voluntarily provided makes it a completely different situation.”
Ostrye said, “I guess that’s my question: How is Mr. Ferguson to know that that was a voluntary request?”
Nisley answered: “Because it says right there: In lieu of personal appearance [before a grand jury], you may furnish the information: You’re not required — you may.”
She said, “but the option was to appear” before the grand jury.
Nisley said, “Right, he could have done either one,” referring to either appearing before a grand jury or just furnishing the emails to Nisley directly.
She did not question Nisley further.
Nisley, who was county attorney at the time he issued the subpoena, said the county has had outside counsel for years who it could have consulted. “If they wanted to quash the subpoena, they could have done that when it was issued. Instead, they voluntarily provided the information.”
Timmons said of Nisley, “Him requiring people to bring documents to him without proper procedures, without court supervision, without a court warrant, that needs to stop.”
When Nisley told the judge he did have a grand jury convened, Timmons quoted from a letter Nisley wrote to the Oregon State Bar, in which Nisley said he could have called a grand jury on the investigation, but didn’t.