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Capital Chatter: Behind the Hayes/Kitzhaber case

State ethics investigation enters uncharted waters as it explores a modern working relationship.

What will the state ethics commission do on Friday when it is asked to determine — preliminarily — whether former first lady Cylvia Hayes violated state ethics laws?

Last time they met, the nine commissioners on a split vote rejected a negotiated settlement with Gov. John Kitzhaber, who is Hayes' fiancée and for whom Hayes was a policy adviser and the official first lady. Kitzhaber's case will return to the commission next month.

In the Hayes case on Friday, commissioners have more than 120 pages of investigative material, plus appendices, to consider as they discuss their staff finding that she violated three areas of state law. Those three areas might contain multiple violations.

• Who will be missing: One person who won't be at the Oregon Government Ethics Commission meeting on Friday is the person who filed the complaint against Hayes in 2014 — then-state Rep. Vicki Berger, R-Salem.

Berger told me this week that she was satisfied with the process and it now was up to the commission to decide whether Hayes gained illegal benefits from her public role. As a legislator, Berger helped rewrite Oregon's ethics laws. A central tenet is that a public official must not achieve a financial gain, other than the regular salary and related compensation, from that public role.

Until Hayes, no other Oregon first lady in recent memory had both an office and her own staff in the Governor's Office. That concerned Berger, who questioned the ethical intersections of Hayes' private work as an environmental consultant and Hayes' role as a policy adviser to Kitzhaber.

• Who makes the decision: In the aftermath of the Watergate presidential scandal, Oregon voters overwhelmingly voted in 1974 to create the Oregon Government Ethics Commission. The governor appoints one member directly and eight others based on recommendations from the Republican and Democratic leadership in the Oregon House and Senate.

Commissioners, who must be approved by the Oregon Senate, serve four-year terms. Three currently are from Hillsboro. The others are from Portland, Tigard, Salem, Keizer, Eugene and Klamath Falls.

• Oregon is in uncharted territory: The investigations involving Hayes and Kitzhaber seem unprecedented in Oregon because of the high-level individuals involved, as well as the scope of the allegations. The commission's investigations initially were put on hold until a separate federal investigation was resolved; no criminal charges were brought against Kitzhaber or Hayes.

Kitzhaber described Hayes as a modern first lady involved in public policy instead of staying in the shadows. In that sense, Oregon's ethics laws might not have kept up with the times. Hayes had argued that she was not a public official, but the commission's investigative report says she was.

Despite the seriousness of the allegations, the potential fines seem minimal — up to $5,000 per violation. The commission historically has levied light fines for first offenders, especially if they are contrite. Acknowledgement of wrongdoing and consequent remorse make an impact. A key issue Friday could be whether Hayes believes she violated ethics laws; and, if she does, whether she is genuinely remorseful.

• The Kitzhaber case lingers: The commissioners, and the public, reacted strongly to Kitzhaber facing only a $1,000 fine for acknowledging four ethics violations. The level of contrition might also have been an issue. At their November meeting, the commissioners on a 7-1-1 vote refused to accept that settlement.

On a dollar level, the proposed fine was measly. But it was 5 percent of the maximum $20,000 for four violations, and first offenders often are fined at a much smaller percentage.

The Kitzhaber case will come back to the commission on Feb. 16. The possibilities range from Kitzhaber's withdrawing his acknowledgement of wrongdoing and fighting the case, to a new negotiated settlement. The latter probably is more likely.

• Questions that need answering: Whatever happens Friday with the Hayes investigation, it won't be the end — unless there is a negotiated settlement. Assuming that the commission makes a preliminary finding that she violated ethics laws, she can appeal through administrative hearings and then the Marion County Circuit Court.

These cases point to a number of questions, some of which have been raised before. Much of the commission's work deals with unknowing or inadvertent ethics violations by local officials or lobbyists, such as failing to file ethics reports on times. Could and should the commission focus more on higher-level allegations? Does it need the authority to impose higher penalties for higher-level offenders, such as top elected officials or major lobbyists?

In other words, does the commission have the heft and the grift to fulfill its role?

Compared with some states — New Jersey, New York, Illinois and Louisiana spring to mind — Oregon's political scene seems squeaky clean. Is that because Oregon does have clean government, or because Oregonians don't see the dirt beneath that image?

I don't have the answer. Do you?

Dick Hughes, who writes the weekly Capital Chatter column, has been covering the Oregon political scene since 1976. Contact him at TheHughesisms@Gmail.com, Hughesisms.com/Facebook, YouTube.com/c/DickHughes or @DickHughes on Twitter.