Wednesday, December 16, 2015
The Oregon State Bar has forwarded a bar complaint against Wasco County District Attorney Eric Nisley to its disciplinary counsel to investigate allegations he made false statements to the bar.
In a Nov. 29 response to the bar, Nisley denied the allegations.
A review of the complaint determined “there is sufficient evidence to support a reasonable belief that misconduct may have occurred,” a letter from the bar stated.
The allegation that the disciplinary counsel is investigating was not made by Wasco County Counsel Brad Timmons in his May complaint to the bar.
Rather, the matter stems from Nisley’s response to the complaint.
The bar is investigating whether Nisley’s “conduct may implicate” two bar provisions: “engaging in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law;” and “knowingly making a false statement of material fact,” according to a November letter from the bar.
All documents submitted to the Oregon bar are public record. The bar documents in this case were obtained by the Chronicle and form the basis for this article.
The bar complaint focused on an investigation Nisley initiated in late 2014 of the county’s former finance director. Nisley asked the Oregon Department of Justice (DOJ) to investigate two cash “draws,” totaling $360, that the finance director made to a county intern in 2013, which the intern paid back in cash. The finance director fully documented the dispersal and receipt of the cash.
Nisley, in emails to the DOJ obtained by the bar, alleged it was “an illegal loan of taxpayer’s funds” and stated he considered it a “grave misuse” of public funds. “You don’t pay back a draw,” he wrote.
The DOJ declined to file charges, as did an outside district attorney who reviewed the matter at Nisley’s request.
In an August response to Timmons’ allegations — and the basis for the new allegations from the bar itself — Nisley’s then-attorney wrote, “Mr. Nisley never saw [the finance director] as a target of the investigation and, in fact, believes [she] is not responsible for any impropriety regarding the [cash] advances.”
The bar responded, saying, “[T]he email string you provided with your Oct. 7, 2015 letter to [the bar] indicates that Mr. Nisley did ask the DOJ to investigate [the finance director]. Please explain this discrepancy.”
Nisley is now representing himself in the matter, according to the Nov. 29 letter he sent to the bar. He wrote, “I did not target [the finance director] in the investigation. I asked other agencies to look into the propriety and possible unlawful loan of public funds.
“At the time I requested an investigation, I did not believe that [she] would make a loan without authorization from her supervisor.”
The bar obtained emails Nisley sent to the DOJ. In one dated Feb. 19, 2015, Nisley states, “As an elected official in Wasco County, I am very concerned about the conduct of our finance manager in her handling of county tax funds. In my experience, people who engage in misconduct in one area often engage in misconduct in other areas. Right now there is very limited oversight of [her].”
In a Jan. 14, 2015, email to the DOJ, Nisley said, “I would like to know the status of [the finance director’s] case. She is in charge of all the county’s finances and appears to have committed a crime. Can you let me know what is going on?”
In his Nov. 29 letter to the bar, Nisley said his emails to the DOJ just reflected “verbiage.”
He said the finance director “was in the stream of an investigation, and was not the target.”
Nisley wrote to the bar, “I wondered that if this kind of behavior was being tolerated, what else might be happening. This does not equate to me thinking [she] was the ‘target’ of the investigation – I did not have enough information to form an opinion as to who might be a ‘target.’”
Nisley referred to other cases where small discrepancies led to evidence of large thefts.
He said, “In hindsight, I can understand how someone would infer that I saw her as a suspect, but I know what was in my mind at that time and it was concern about completing this investigation and determining who was responsible for authorizing the improper loans.”
Nisley wrote that he interviewed the intern who got the cash advances, and said she considered them a loan.
“When I interviewed her I confirmed what I initially believed — which was that [the finance director’s] supervisor Mr. Tyler Stone authorized the cash to be given to her.”
He wrote that in emails between the finance director and Stone, she “communicates her concern to her supervisor Tyler Stone and correctly states that such check draws must be approved by the Wasco County board chair. I knew that [the intern] was given cash so I remained concerned about the propriety of the transaction.”
The former finance director could not be reached for comment on this story. Stone said, “Not only did the Department of Justice find no wrongdoing, the Wasco County Circuit Court found that the District Attorney’s investigation violated the Oregon Constitution.”
Nisley said the DOJ “named their investigation the [name of finance director] investigation, not me.”
A document from the DOJ from December 2014 states, “Wasco County DA Eric Nisley is requesting the investigation and prosecution of [finance director]… the allegation is that [she] paid employees outside of the standard payroll schedule…”
Nisley told the bar, “I do not recall saying I wanted [her] prosecuted – I do recall saying I wanted the matter investigated.”
Timmons alleged the investigation was retaliatory, because the finance director had rebuffed a sexual advance from Nisley three years earlier during a conference, when the district attorney had been drinking.
Nisley told the Chronicle earlier his comment was a mistake which he apologized for. Nisley said he initiated the investigation after hearing concerns about the two cash draws from two elected officials.
Emails between Nisley and DOJ officials show his frustration with the DOJ investigation. In one email, he said of the DOJ investigator that, “His clear bias [in favor of the finance director] comes through like a tuba in a library.”
The DOJ concluded the intern was a union member entitled to a payroll draw, but Nisley said he found out she was not a union member, and confirmed it with the union. Had the DOJ investigator learned that, he “would have known that the union agreement Mr. Stone relied upon to justify this loan did not apply to” the intern, Nisley wrote.
A DOJ official, meanwhile, emailed Nisley to tell him that officials felt two email strings Nisley had sent to them lacked “evidentiary value.”
The DOJ official also said, “To be blunt, it came as a surprise that a grand jury had been convened in this case.” And that Nisley had issued a subpoena “for what must have been a great deal of material.”
Nisley said he did not convene a grand jury, but did subpoena emails between the finance director, Stone and the intern.
The DOJ official continued in the email, saying, “We also found it odd that, in spite of what must have been a sizable amount of documents, only these two email strings had been sent to us.”
Nisley responded to this DOJ email by saying the “smokescreen” of the union agreement covering the cash draws was “complete crap. Even if there was a policy that allowed draws, this was not a draw. Period.”
Timmons will get a chance to reply to Nisley’s Nov. 29 response to the bar. After all documents are reviewed, the matter will either be dismissed or referred to the State Professional Responsibility Board, according to a bar letter.