Moonlighting scandal: Secretary of state can’t be impeached in Oregon

By GARY A. WARNER
Oregon Capital Bureau

Oregon is the only state where top state executives such as Secretary of State Shemia Fagan can’t be impeached and removed from office.

Fagan on Monday apologized for taking outside work from a major legal cannabis company, which paid her $10,000 per month plus potential bonuses for out of state marijuana licensing for the company.

Fagan’s office oversees business practices of Oregon companies and had just released an audit calling for streamlined state marijuana laws.

“I owe the people of Oregon an apology,” Fagan said in a public statement released Monday. “I exercised poor judgment by contracting with a company that is owned by my significant political donors and is regulated by an agency that was under audit by my Audits Division. I am sorry for harming the trust that I’ve worked so hard to build with you over the last few years, and I will spend the next two years working hard to rebuild it.”

Despite the apology, Republicans on Monday continued to call for Fagan to resign. Along with auditing state agencies, the Secretary of State oversees elections and public records. 

But barring a change of mind, Fagan is like every other major executive officer in Oregon — extremely difficult to remove from office because of an omission in the Oregon Constitution. 

No mechanism for removal

The state has no way to remove an elected executive officeholder short of a long, laborious recall. 

It’s the same legal hole that hit lawmakers in 2015 when Gov. John Kitzhaber flirted with the idea of reversing his decision to step down amid influence-peddling allegations. Because Oregon is also one of five states without a lieutenant governor, Kitzhaber would be replaced by Secretary of State Kate Brown. Top state lawmakers, including then-House Speaker Kotek and Senate President Peter Courtney, had called on the governor to leave. But all they could do is wait until Kitzhaber made his choice and opted to leave office on Feb. 18.

Lawmakers promised at the time to revise the state constitution so that impeachment would be possible. But like other unusual constitutional wrinkles — such as being the only state requiring a two-thirds attendance in each chamber to establish a quorum to do any work, and a two-thirds threshhold to stop the archaic and time-chewing requirement to read bills aloud in full prior to final passage — the impeachment change never happened. A lack of time, traction and political will sidetracked chances to smooth out the wrinkle and fill in the potholes in the constitution.

Now the impeachment issue is back.

Fagan, a former Democratic state senator from Portland, was elected secretary of state in 2020. After what she said were calls to ethics officials to ask questions about outside work, she signed a consulting contract with Veriede Holdings, LLC. in February.

She confirmed her work for the affiliate of the La Mota marijuana dispensary chain in an interview last Thursday with Willamette Week.

La Mota was a major donor to Fagan’s political action committee, as well as those of other Democrats, including Gov. Tina Kotek and Treasurer Tobias Read. The company has drawn the attention of the Oregon Department of Revenue and the Oregon Liquor and Cannabis Commission for possible violations.

Fagan initially said she welcomed any scrutiny and said the paid work would not have an impact on her state work overseeing business practices of the cannabis industry. She said she had no active role in an audit released under her office last week that said overly strict regulations were preventing a more diverse population from roles in the industry and in general making it too expensive for entrepreneurs who already dealt with problems connected to the federal prohibition of marijuana.

After the side work was made public, the state’s two top Republican leaders — Senate Minority Leader Tim Knopp, R-Bend, and House Minority Leader Vikki Breese-Iverson, R-Prineville — called on Fagan to resign.

Kotek, a fellow Democrat, said it was “premature” for her to comment on a possible resignation, but said “I’m very dismayed.” Kotek said she supported an Oregon Ethics Commission probe into the contract.

“I only have one job,” Kotek said.

By Monday, Fagan had issued an apology and said she had terminated her outside contract work.

Recall vs impeach

Under current Oregon law, the only way to remove a governor, secretary of state or treasurer is through recall, a process that requires the gathering and verification of signatures followed by a recall at the next general election. That would be November 2024.

A current effort to amend the Oregon constitution to allow impeachment, House Joint Resolution 16, was introduced by Republican lawmakers on the first day of the session, Jan. 17. It’s chief co-sponsors are Rep. Bobby Levy, R-Echo, and Rep. Jami Cate, R-Lebanon.

House Speaker Dan Rayfield, D-Corvallis, assigned it to the House Rules Committee on Jan. 20. It is not scheduled for any additional activity.

On Monday, Rep. Shelly Boshart Davis, R-Albany, called on the Legislature to send the issue to voters next year.

“Recent events illustrate, yet again, the importance of having an impeachment procedure on the books as a check against negligence and abuse of power by public officials,” Boshart Davis said.

The resolution proposes an amendment to Oregon Constitution to create a power of impeachment of executive branch officials similar to that used by Congress when impeaching a President. The House would vote for an impeachment resolution — essentially an indictment of alleged abuses. It would require a three-fifths “supermajority” vote of the 60 Oregon House members to send the resolution to the Senate.

The Senate would then act as the jury of a trial. Under HJR 16, it would take 20 votes — a two-thirds majority of the 30 senators — for conviction. The resolution limits punishment to immediate removal from office and disqualification from holding other offices in the state.

But before it can become law, the constitutional change would have to be approved by voters at the next general election. Nov. 5, 2024 again. Only if the referral was approved by voters could lawmakers begin the impeachment process.

Neither a recall or a referendum of the constitutional amendment for impeachment would come to voters prior to Fagan coming up for re-election in 2024. The first likely vote would come at the May 21, 2024 primary. If a Democratic challenger did not defeat Fagan, then all state voters would cast ballots on whether she should receive another four years on the job in November.