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A thirty-second exposure under the night sky from Rhea Rd., a public road running through Shepherd's Flat wind operation. The project received $30 million in tax credits instead of $10 million by dividing its project into three parcels.
(Oregonian/OregonLive file photo)
"It was clear transparency was not a priority in the prior administration," Gov. Kate Brown told a legislative committee last week. "I changed that my first day on the job and every day since."
Those are bold claims coming from Brown, who was apparently trying to land a political two-fer with that statement. Not only could she distance herself from the ethical stink accompanying Gov. John Kitzhaber's administration, but she could portray herself as a champion of light and trust in government.
If only just saying those words could make it true. Unfortunately for Oregonians, Brown's administration seems to be delivering more of what we are all too used to: Grand statements with little action.
Consider the review of the Oregon Department of Energy that Brown promised nearly three months ago after, once again, the agency was found to be engaging in the same kind of shady practices that have characterized its marquee programs for a decade.
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This time, the agency was allowing tax-credit recipients to sell their credits through third-party brokers at levels far below what state-mandated pricing formulas called for - flouting the agency's own rules and seemingly violating legislators' intent. The practice, abandoned this year after the Secretary of State's office released its review, dated back to at least 2012.
Brown pledged to immediately work with legislators to review and improve tax credit management. She said that those measures were "a beginning" and that her administration would work with legislators on a broader review to better position the energy department for future work on other energy and climate-change policies.
But as The Oregonian/OregonLive's Ted Sickinger reported last week, there has been little progress since. At the same time, the agency is under siege from staff turnover, a new lawsuit by utilities and questions from multiple sectors about the agency's competence to do its job.
Worse, Brown has refused to take even small steps to help shine a light on the energy department's dealings. The energy department has said it relied on legal advice - verbal and later in writing - from the Oregon Justice Department for allowing tax-credit transfers at discounts below what state law called for. But the agency has refused to release the legal memo, citing attorney-client privilege.
Both Sickinger and EO Media Group's Hillary Borrud have challenged the refusal to share the memo, noting instances in which the agency arguably waived its attorney-client privilege by sharing the legal conclusions with outsiders and with the Secretary of State's office as it conducted its investigation. But the justice department, unsurprisingly, denied that as well.
Among the reasons: Because the Attorney General provides legal advice to both the Secretary of State and the Energy Department, the sharing of the information was still considered an extension of the attorney-client privilege. Never mind that, at least theoretically, one body was investigating the other.
The legal memo becomes especially important considering testimony in late September by Senior Deputy Legislative Counsel Kate Tosswill to the Senate Interim Committee on Revenue and Finance. Tosswill told legislators that it is "doubtful" that state laws would permit the energy department's tax-credit transfer scheme. Her diplomatic but clear analysis calls into question the quality of the legal advice that the energy department received.
But even though the energy department has abandoned the controversial pricing practice, the governor's office still refuses to direct the energy department to release the memo. Why? On principle, Kristen Grainger, Brown's interim chief of staff, said to The Oregonian/OregonLive editorial board.
"The primacy of attorney-client privilege is the issue here," she said. "If people think that the privilege will be waived, they will not consult their attorney."
So, in other words, this is what matters to Brown more than transparency: Preserving confidentiality of an inaccurate legal analysis that led to years of flawed energy tax credit pricing by an agency that is responsible for a decade of program abuses and for tens of millions of dollars of tax credits that never should have been granted. Gov. Brown, this is where transparency should start.
- The Oregonian/OregonLive editorial board