Tuesday, July 21, 2015
Two emails remain at issue in a court motion by Wasco County to quash, or nullify, a subpoena served in November 2014 by the county’s district attorney seeking emails of various county employees.
Wasco County District Attorney Eric Nisley got a thumb drive with emails on it last November, and he says he returned the thumb drive to the county in early June, some 10 days before the county’s attorney, Brad Timmons, filed a motion to quash the subpoena.
Nisley told the Chronicle he has asked the Oregon Department of Justice to return to Timmons the paper copies of two emails that he sent to the DOJ earlier as part of Nisley’s continuing investigation of a county employee.
It is unclear who the employee under investigation is. Early documents from the DOJ show a county department head as the subject of the investigation. Nisley has said that person was not the subject of the investigation, but he would not say who was.
Timmons has described the investigation as an
“unfocused, unrestrained, vague, ongoing, undisclosed criminal investigation.”
In a July 15 status hearing on the motion to quash, Hood River County Circuit Court Judge Karen Ostrye determined the county had a right to a hearing on the matter, said Timmons.
The judge gave the parties until this Friday, July 24, to either resolve the matter or seek a hearing, Timmons said.
“My client received a subpoena and has the right to have it quashed, or has the right to move to have it quashed,” Timmons said.
In a July 2 letter to the judge, Nisley contended that, because there is no criminal case at hand, there is no basis for a motion to quash, or cancel, the subpoena.
Timmons said the judge agreed with his request for a hearing if the matter doesn’t get resolved.
Nisley said, “They want to have a two-day evidentiary hearing over these two emails, and they want to subpoena me. That’s fine. If they do that, I would have to get a Department of Justice attorney in here to serve as my lawyer and they bill for their time and they would bill the county.”
Timmons said Nisley has acknowledged he sent emails to a third party – the Department of Justice – and also noted the “subpoena is still in effect, it has not been withdrawn.”
The subpoena sought emails as part of his investigation into a county financial transaction.
According to a still-pending bar complaint Timmons filed against Nisley, the investigation concerned “a petty cash draw for a nominal amount, advanced to an employee under extenuating circumstances for wages already earned but slightly ahead of the designated pay day,” the complaint alleges.
The employee’s boss “approved the petty cash draw pursuant to express county policy, and documented this transaction and immediately filed it in the county records,” the bar complaint stated.
Nisley said he referred the investigation to the state Department of Justice, and forwarded the two emails as part of it.
The bar complaint stated that Nisley “took back” the investigation in mid-March after the DOJ was prepared to close it without finding any wrongdoing.
Nisley told the Chronicle the investigation is under review by “a prosecutor” – he would not say whether it was him or someone else – and he expected it to be “completed very soon.”
Nisley said all the emails he sought through the subpoena are “public records, subject to disclosure and inspection by anybody in the state.”
Nisley said the motion to quash comes down to “essentially, it’s two pieces of paper. And we’re going to spend thousands of taxpayer dollars on that.”
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 said an initial subpoena was overbroad and sought commissioner emails. Later, it was narrowed to exclude the county commissioners and was then fulfilled.
Nisley said, “This is something that can be resolved with a phone call, easily. But Mr. Timmons refuses to talk to me.”
Timmons said Nisley has not complied with returning what was subpoenaed. Nisley says he has.
Timmons said he was asking that all original documents obtained, and all copies in all forms, are returned to the county, and that the district attorney not use, release or disclose any information obtained in any manner and that the district attorney promptly report to the court that he has complied.
“That’s why we’re not satisfied with Mr. Nisley’s response that he gave us back that electronic format he received, because he acknowledges he gave copies of it to another party,” Timmons said.