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Secret subpoena at issue in dispute

The chief allegations in a recent bar complaint against Wasco County District Attorney Eric Nisley center around an investigation he launched of a county employee.

The May 20 bar complaint by Wasco County legal counsel Brad Timmons alleged that Nisley launched a “meritless” investigation in retaliation against a department head who rebuffed him when he solicited her for sex.

It alleges that, as part of the investigation, Nisley issued a secret subpoena for county commissioner emails “to obtain information to use against the commissioners for personal and political reasons, to embarrass them or to otherwise cause them harm.”

The complaint alleges that at a 2011 conference, Nisley showed the county department head sexually graphic content on his phone, then asked her to his room “to have sex.”

The department head “emphatically refused the solicitation, and Attorney Nisley moved away from her,” the complaint alleged. “Approximately 10 minutes later, Attorney Nisley passed out intoxicated, and had to be helped out of the lounge,” it alleges.

The bar complaint alleges the department head immediately complained to County Administrator Tyler Stone, “who confronted Nisley about the incident.” A few weeks later, Nisley apologized to her, the complaint alleges.

Nisley told the Chronicle, “I have never had any such things [sexually graphic images] on my phone so that would not be possible.” He also said he did not pass out and remembers the evening.

Nisley said at the conference, held in Eugene, he’d visited some old college friends and had some beer. “Later that same evening, after drinks with county representatives in the bar, I attempted to make a joke,” Nisley said. “The joke was tasteless and I regretted it.”

“As County Counsel Timmons says – I moved away from the person.

“County Counsel Timmons also correctly states that I apologized for my conduct. She accepted my apology. I regret my conduct but I did not violate any ethical rules,” Nisley said. The complaint alleges the woman felt Nisley has retaliated against her since that conference with “intimidating behavior.” Around October 2014, the complaint alleged Nisley began a criminal investigation of her, based on an allegation of abuse of office and wrongdoing with county monies.

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 department head “approved the petty cash draw pursuant to express county policy, and documented this transaction and immediately filed it in the county records,” the complaint states.

Timmons alleged in his complaint that Nisley’s investigation of the department head, “whether justified or not,” constituted a professional conflict of interest because he represented the county for at least part of the time, and a personal conflict of interest because of the 2011 incident, which was likely to “affect his judgment.”

As part of Nisley’s investigation, he served a secret grand jury subpoena on the county’s Information Technology director on Nov. 7, 2014. All grand jury subpoenas are secret until the matter is resolved or charges are filed, Nisley said. The subpoena sought emails between the county administrator, the department head who issued the petty cash draw, the employee who received it, and all emails between the county administrator and the county commissioners, including deleted correspondence, the complaint said.

The bar complaint alleges the subpoena was “surreptitious” because: It had no pending case number; was “overbroad” with no subject or date limitations; was served by Nisley’s own clerk; told the IT director he was “required not to disclose the existence of this request to any person” including county commissioners or the county administrator; was done apparently without disclosing the information to the grand jury; and without affording the [county] an opportunity to protect itself.

Nisley said the subpoena was issued in a standard way, and the requirement not to disclose the request is standard language on grand jury subpoenas for records. The complaint alleges Nisley had a duty “to keep the county reasonably informed. Instead, [he] took action against his client [Wasco County], and without his client’s knowledge or consent when he obtained volumes of his client’s emails.” It also alleges the subpoena was “a pretense for acquiring all communications between the commissioners.”

Nisley told the Chronicle, “In the matter being investigated, the records subpoenaed related specifically to potential misappropriation of county funds by a certain council official. Such conduct may constitute official misconduct or theft. These are crimes that I reasonably believed to have been committed in Wasco County and required investigation.” He said the original subpoena was overbroad, and one with a narrower scope was served and fulfilled. Nisley told the Chronicle that when he launched his investigation he initially asked the Oregon State Police to investigate, but was referred to the Department of Justice “due to [the] financial nature of investigation.” Nisley added, “I do not generally comment about the details of an ongoing investigation and I will not do that here.” DOJ was asked in November or December to do the investigation, the complaint alleges. “The DOJ concluded that there was no wrongdoing and that the investigation was baseless,” the complaint alleges.

“On the eve of the release (approximately March 17, 2015) of the DOJ’s report exonerating the department head, Attorney Nisley informed the DOJ that he was ‘taking back’ the investigation to further pursue it at the local level,” the complaint alleges.

“It is reported that Attorney Nisley has since retrieved the released [DOJ] file in its entirety, ensuring that the investigation and threat of criminal indictment remains ongoing,” the complaint alleges.

The complaint alleges, “Attorney Nisley now suggests that the investigation has shifted and he refuses to return the subpoenaed documents to the county.”

The complaint includes a letter Nisley wrote to Timmon’s law firm April 24, saying, “I do not know how you reached the conclusion that [the county department head] is the subject of a criminal investigation.” He added, “As far as I am concerned, she never was the focus of the investigation.”

The complaint alleges the “department head has been unable to work in the county building with Attorney Nisley due to the stress of the ongoing, continuous threat of criminal prosecution.” The department head has recently sought independent legal counsel, and another department head, “aware of the ongoing threats of prosecution of county employees, has inquired whether he/she should do the same,” the complaint alleges. The complaint alleged “Nisley has exposed Wasco County to potential litigation from the department head.” The complaint alleges Nisley’s work as district attorney is materially limited by “his personal interest,” and obligations as the county’s attorney. Nisley said, “When I provided legal assistance for the county, they knew I was district attorney and that my duties as district attorney require me to prosecute cases and investigate matters that come before me (including allegations against current county employees). They could have hired a different lawyer at any time if they felt I had a conflict of interest.”

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