State ethics panel rules against Commissioner Lindsey on two of four counts

The Oregon Government Ethics Commission has determined that Linn County Commissioner John Lindsey violated state law requiring the disclosure of a potential conflict of interest twice, while dismissing a third allegation.

At the Jan. 25 hearing in Salem, the commission also dismissed an allegation against Lindsey of misusing his office.

The allegations stemmed from a complaint filed by William Templeton that the commissioner, who was re-elected on Nov. 6, had used his office to harass the owners and residents of a property and attempt to shut down a personal medical marijuana grow operation at 36340 Hillside Lane in Lindsey’s neighborhood outside Lebanon.

The property owners at the time were Mark Owenby, Templeton’s father-in-law, and Michelle Page. The owners began taking steps to grow marijuana and build a greenhouse after purchasing the property Dec. 1, 2016.

On that particular property, medical marijuana may be grown by residents only. Lindsey has maintained that the owners were growing more than that.

Lindsey, his wife and eight other neighbors filed a lawsuit in federal court last year against the property owners, Templeton and others connected to the grow and construction of the greenhouse.

Lindsey became involved June 4 after receiving a complaint about the property from neighbor Cindy Frink, according to investigator Hayley Weedn’s report to the Ethics Commission. Lindsey went to the property to investigate in his official capacity, presenting his business card.

Templeton claimed Lindsey “began grilling them about the nature of the operations” and saying, “what you’re doing is illegal” and “you picked the wrong neighborhood,” according to the investigation report. Lindsey denied making the statements.

Multiple times, Weedn told the commission, Lindsey said he did visit the property, but in August he told the Ethics Commission that he had not been there since childhood, an inconsistency that Commissioner Kamala Shugar said made her “uncomfortable.”

On June 5, Lindsey sent an email to county staff reporting what he had observed and indicating he had legal concerns, Weedn told the commission, and then on June 27, Lindsey responded to an ongoing string of emails between Frink and county Planning and Building Department Director Robert Wheeldon.

Weedn contended that Lindsey should have disclosed a potential conflict of interest for his interactions on June 4, June 5 and June 27.

A potential conflict of interest must be disclosed by public officials when an action may provide a financial benefit or help them avoid a financial detriment.

Weedn contended that Lindsey’s “simultaneous personal and official involvement in the matter, through his actions with the county Planning and Building Department combined with his visit to the property, indicated that he attempted to use his position to shut down the marijuana grow operation” – a prohibited use of office because he was attempting to avoid personal financial detriment.

The law prohibits public officials from using or attempting to use their position to obtain a personal financial benefit or avoid personal financial detriment, Weedn said. Lindsey had argued in the neighborhood’s notice of intent to sue that the marijuana operation would detrimentally affect their property values.

Lindsey’s attorney, Kenneth Montoya, told the commission that Lindsey’s actions were on behalf of eight other people who are also suing for a loss.

Lindsey also was doing his job, Montoya said. When he receives a complaint from a citizen, he investigates.

It’s a small county, Montoya said. “He looks his constituents in the eye – when they come to him, he has to respond to them.”

He added that had Lindsey received the complaint and simply forwarded it to someone else, it would still be an action and technically a potential conflict of interest.

The potential benefit of Lindsey’s actions “is far too removed,” Montoya said, when, two years down the road, Lindsey could be asked to vote while possibly facing a financial detriment.

If Jeff Bezos wanted to build an Amazon operation in the small eastern Oregon town of Nyssa, “that’s going to raise the property values in Nyssa simply by putting that there,” Montoya said. If the mayor rolls out the red carpet but has to make a declaration of a potential conflict of interest in that situation, it means public officials will be answering phones with potential conflict of interest statements.

Lindsey has been in a similar situation several times as a Linn County commissioner, where an action may increase property values. Lindsey told the commission that he has taken action related to the Lowe’s Distribution Center and the Veterans Home, for example.

“Anything that could increase the value of your home would be a conflict of interest,” Lindsey said. Economic development activity becomes a conflict of interest.

“Where I’m a failure at my job, you’ll see home prices plummet and people leave,” Lindsey said.

Lindsey told the commission in August that his concerns were more about intimidation and racketeering than diminished property values, according to the investigator’s report.

He told the commission Friday that other neighbors grow marijuana for personal use, but none of them were growing 150 plants in a large greenhouse.

Commissioner Alison Kean said “that ability to avoid the detriment isn’t simply his.”

He used his position to get people on the phone, Kean said, but “the neighbors are doing the same thing.”

Another commissioner said Lindsey should have sent the complaint to a staff member. Kean said that’s a question of department policy, not ethics, noting that Lindsey was doing his job coincidentally to the complaint. Public officials don’t lose the same rights their neighbors have.

Any citizen could have gone to the property, Weedn said, but Lindsey presented himself as a county commissioner “with a level of perceived authority.”

Kean said Lindsey also may have been “just doing his job,” which happened to coincide with a complaint in his neighborhood, and he would have responded had it come from elsewhere.

Where he doesn’t have a heightened financial interest, Weedn added.

Lindsey could have said he is affected by the issue and passed it off to someone else, said Chairman Richard Burke.

Lindsey “kind of” did that in August when he sent a letter to county officials notifying him that he and his neighbors were filing a lawsuit, said Ronald Bersin, commission executive director. “I think he recognized that he had a conflict at that point.”

Commissioner Nathan Sosa asked how Lindsey could have disclosed a potential conflict of interest on June 4.

The law requires a public official to announce a potential conflict of interest prior to taking action, Weedn said. He could have passed it on to someone else or waited to take action until making a public announcement.

Commission counsel Amy Alpaugh said the commission has been flexible in how public officials can declare a potential conflict of interest. Among the options, they can post declarations to their websites.

Montoya noted again that forwarding it to staff would be a potential conflict of interest: “Taking action directly in a matter where you have financial interest is the conflict.”

Lindsey told the commission that the commissioners often address potential conflicts of interest. Just last week on a land-use issue, Chairman Roger Nyquist slid the gavel to Lindsey because Nyquist is a neighbor of the property in question.

He would have declared a conflict of interest if, at any time, the property owner submitted a land-use action to the board, Lindsey said. “I’ve done it many times over the years.”

At the time Lindsey responded to the complaint, he didn’t know if there was an illegal grow, Montoya said. He wasn’t sure at the beginning what he had. He didn’t know at the time that he had a potential conflict of interest.

In discussion about the case, Kean said that a public official using a position to get out of a traffic ticket is an example of a prohibited use of office.

In Lindsey’s case, “that is his official position,” Kean said. “I don’t think it’s enough that it mattered to him because he’s a neighbor.”

She requested that the board consider the question of misusing a public office from the conflict of interest allegations.

Shugar said there seems to be a series of events and an intense amount of focus by Lindsey on this property.

The difference in this case, Bersin said, was when Lindsey got the call, “he immediately got on the horse and headed over there,”  suggesting that anyone else wouldn’t have had such an immediate response, and an email from a commissioner to a department head will carry more weight than others, say an investigator seeking records.

Telling someone at the property that growing marijuana is not allowed, as a commissioner is hasty, Weedn said, and a little overbroad because personal marijuana grows are allowed.

The commission voted 7-2 against a finding that Lindsey violated the state law governing prohibited use of office. Voting to reject the allegation were Sean O’Day, Sosa, David Fiskum, Kean, Daniel Mason, Charles Starr and Burke. Shugar and Karly Edwards voted for a finding of a violation.

Sosa requested that the board consider the June 4 allegation of failing to disclose a potential conflict of interest separately from those on June 5 and June 27.

Sosa said he didn’t see how Lindsey could have time to announce the potential conflict of interest.

The committee voted 6-3 to dismiss the June 4 allegation. Voting to dismiss were Mason, Sosa, Starr, Fiskum, Kean and Burke. Voting not to dismiss were O’Day, Shugar and Edwards.

The board voted unanimously to find that Lindsey violated the state requirement to disclose a potential conflict of interest on June 5 and June 27.

Ethics Commission staff will return later with a stipulated order and impose penalties, or Lindsey may appeal and appear before an administrative law judge.

According to state law, the commission may impose a civil penalty of $5,000 for each violation. For violating prohibited use of official position, the fine is $10,000.

Lindsey remains under investigation by the Oregon Department of Justice for taking down campaign signs put up by Templeton prior to the election. Among them were signs that called Lindsey a liar. After Templeton filed the complaint before the election last fall, Lindsey told The New Era that it was legal for him to remove the signs.

Lindsey said he hasn’t decided how he will respond to the Ethics Commission’s decision yet and will make that decision in the next couple of weeks.

The bottom line, Lindsey said Monday, is that the three charges leveled by Templeton were dismissed.

Lindsey said that in addition to the charge of prohibited use of office, Templeton also alleged official misconduct and misuse of confidential information, neither of which the investigator brought before the commission; and Friday, the commission dismissed the charge of prohibited use of office.

Lindsey said the long-term implications of the commission’s findings for not disclosing a potential conflict of interest will extremely limit what public officials can do in the future.

He is concerned about identifying complainants, who he said are supposed to be confidential, in the process of disclosing a conflict of interest.

Lindsey said he “self-reported to county counsel and other officials of the potential conflict internally to protect the names of citizens in emails marked confidential by staff.”

At the time he responded to the complaint, he didn’t know who was on that property, Lindsey said. The ethics commission “made an assumption that I knew any of these people, and they made an assumption why I was there.”

While the complaint against Lindsey alleged he was trying to shut down a  personal medical marijuana grow, Lindsey said, he pointed to an article that appeared in the Marijuana Business Daily reporting that Alex Tinker, an attorney for Owenby, Page and other family members, said that the family had decided to get out of the cannabis business, something Lindsey said, on Monday, was an admission that it was a business.

Through this process, Lindsey said, “it became clearer to him that the complaint appeared to be coordinated with larger political campaigns in his re-election. I have learned it appears Mr. Templeton has strong political connections and issues surrounding this case are likely not going away any time soon.”