We are old-fashioned about the law.
We think Oregonians should be able to find out what the law is.
That way Oregonians can figure out what’s legal and what’s not.
But there are some in Oregon government who feel differently. They are over at the Oregon Department of Energy.
They have approved tens of millions of dollars worth of tax credits that maybe never should have qualified.
Why do we say maybe?
Because it’s impossible to know what the state government thinks the law means.
The department sold energy tax credits at discounts that appear to be greater than what was allowed by law. State lawmakers have been puzzled. We are puzzled.
The department’s response was that its decision was based on legal advice provided by its attorney — the state’s Department of Justice. It has refused to disclose the legal advice. The effect is that Oregon law is a secret.
Senate Bill 1579 aims to do something about it. State Sen. Doug Whitsett, R-Klamath Falls, a sponsor of the bill, wants to require that any order or rule issued by an agency must include a summary of the legal advice that supports it.
The bill has met strong resistance from the Justice Department. It says it will inhibit its ability to communicate fully and frankly with other state agencies. It points out that attorney-client privilege is waived if the client discloses any significant part of the communication. So, it says, a summary could lead to destruction of any privileged communication. And the bill could lead to a situation in which agencies just don’t seek legal advice.
Those are legitimate concerns. The bill is problematic. But state lawmakers and Oregonians are entitled to know why state agencies do what they do. It’s not good enough just to say: “Our attorney says what we did is OK. Just trust us.”
It’s especially not good enough to say when lawmakers believe a state agency is not following the law.
Gov. Kate Brown could fix this. She criticized former Gov. John Kitzhaber for effectively turning stonewalling into an art form. She vowed to do better. But she’s also building a wall of secret law. She should order that the memo be released.