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DA files bar response

More details about the investigation at the heart of the bar complaint against Wasco County District Attorney Eric Nisley were disclosed in his formal response this month denying all of the allegations against him.

The complaint was filed May 20 by Brad Timmons, Wasco County legal counsel. In it, Timmons alleged Nisley retaliated against a female county department head who once rebuffed his sexual advances in 2011 by launching an investigation last winter of $360 in payroll advances she made to a county employee who was experiencing hardships.

Timmons alleged the draws, made in 2013, were against earned wages and they were allowed under county policy.

In his Aug. 5 response, Nisley denied the investigation was retaliatory, and said he launched it after an elected county official felt the payroll advances were “sufficiently anomalous” that he was concerned about their propriety and told Nisley about them.

Timmons told the Chronicle the official who “complained” to Nisley about the payroll advances was Wasco County Treasurer Chad Krause. Timmons was given until Sept. 1 by the bar to reply to Nisley’s response. Timmons said he mailed his response Aug. 19.

The employee who received the cash advances was an intern, who paid back both advances in cash, Nisley’s response stated.

Timmons alleged the investigation focused on the woman who approved the advances. Nisley said she was not the focus.

Supporting documentation in the bar complaint show that when the Oregon Department of Justice was called in by Nisley to investigate, it used the woman’s name in the title of its investigation.

Timmons alleged Nisley’s investigation was retaliatory and frivolous, and showed a conflict of interest because the female employee had rebuffed Nisley’s sexual advances at a 2011 conference in Eugene.

In Nisley’s response, which was filed by Peter Jarvis, the attorney representing him for the bar complaint, Jarvis said Nisley made an “untoward comment” to the woman in 2011, calling it a “bad joke” for which Nisley immediately apologized.

“If Mr. Nisley were bent on retaliation, it is also strange that he would wait three years to retaliate. Simply calling an investigation ‘retaliatory’ does not make it so,” the response stated.

Nisley alleged in his response that the scope of the investigation showed it was not aimed at the woman, but rather at the county’s administrative officer, Tyler Stone, who Nisley alleges authorized the financial transactions.

“Mr. Nisley never saw [her] as a target of the investigation and, in fact, believes [she] is not responsible for any impropriety regarding the advances because Mr. Stone (and not [the woman]) authorized them,” Nisley’s response stated.

The bar complaint alleged the investigation lacked merit. Nisley’s response said “the purpose of an investigation is to determine if there is a meritorious claim.”

“In any event, the investigation of the cash advances was not frivolous,” Nisley’s response alleges. “Assuring the appropriate use of county funds is within the purview of Mr. Nisley’s duties as Wasco County district attorney.”

Nisley’s response alleged, “the focus of the investigation was the misuse of public funds generally and Mr. Stone in particular. Mr. Nisley has never interviewed or directed anyone else to interview [the female employee] in connection with the investigation.”

The response stated “his investigation sought information about all of the people involved in the cash advance: Mr. Stone,” the woman, and the intern who received the advance.

Nisley’s response alleges he learned Stone authorized the cash advances through his investigation. The female county employee “had documented each advance and placed said documentation in the petty cash box,” the response states.

Timmons’ complaint alleged that Nisley asked the DOJ to investigate, and when it was about to close its investigation with no findings of wrongdoing, Nisley took the investigation back and continued it on his own.

Nisley’s response stated, “After interviewing Mr. Stone, the DOJ closed its investigation, concluding that the advance was allowed by a union agreement. Mr. Nisley continued the investigation after confirming that the [intern] was not a union member and was therefore not subject to the terms of the union contract.”

Nisley’s response noted that he “has now concluded the investigation and has declined to pursue any prosecution in connection with the investigation.”

Nisley’s response said, “It also does not appear that Mr. Timmons consulted with [the female employee] before making his complaint. His complaint does not contain any statements that purport to have been authorized by [her] about alleged fears or concerns of retaliation. Instead, it appears that the basis of Mr. Timmons’ complaint with respect to the [female employee] is nothing more than rumor. This is an insufficient foundation for a conflict of interest claim.”

The Chronicle obtained a March 31 affidavit signed by the woman, titled, “In the matter of the state bar ethics complaint re: Attorney Eric Nisley.” It details her version of what happened at the 2011 conference, saying Nisley asked her for sex, passed out 10 minutes later, and apologized the next week, saying he had no recollection of it. The woman said she accepted the apology and added that “since that time, Mr. Nisley has engaged in other non-sexual, but intimidating behavior toward me.”

Nisley told the Chronicle earlier that he did not pass out and remembers the evening.

This morning, Aug. 21, he told the Chronicle, “I have spoken to three different people who told me that [the woman] did not know she was part of a bar complaint and did not know about it before it was in the paper.”

The woman did not return three phone calls placed to her work office.

As part of his investigation of the cash advances, Nisley issued a subpoena in late 2014 seeking certain county emails, including emails between Stone and the three county commissioners.

In a statement to the Chronicle, Timmons said the subpoena Nisley issued “remains under attack by Wasco County. Wasco County moved to have the subpoena quashed, and has asked the court to require Mr. Nisley to return and/or delete all originals and copies of documents that were produced as a result of the subpoena. The matter will be brought before the court in the coming months.”

The complaint alleged Nisley issued an “overbroad,” “surreptitious” subpoena “against his own client,” the county, without telling county officials, “for personal and political reasons, to embarrass them or to otherwise cause them harm.”

In Nisley’s response, he stated, “There also is no indication that the subpoena was improper.” A footnote adds that “As the district attorney for Wasco County, Mr. Nisley has subpoena power” under state law.

In his bar complaint, Timmons alleged the commissioners did not authorize disclosure of the emails nor waive their attorney-client privilege.

Nisley’s response alleged those concerns were “non-sequiturs. Mr. Nisley is not required to obtain authorization from county officials to pursue an investigation of misuse of county funds. Nor is there any indication that the emails obtained by the subpoena were or are subject to a personal claim of attorney-client privilege. None of the emails were, or discussed, correspondence to or from a lawyer.”

Nisley’s response alleges that “In Brief, Mr. Timmons has made a number of serious charges, but, even though he is a lawyer who presumably knows what such charges entail, provides little to no evidence to support them.”

Examples of that, Nisley’s response alleged, were that Timmons’ bar complaint did not name the female county employee who made the cash advances.

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