Broken Record

The independent investigation into Misha Isaak

Today, Governor Kate Brown’s office released records related to the “independent investigation” that was conducted into the claims of inappropriate conduct by former staffer Misha Isaak, that were alleged by former Public Records Advocate Ginger McCall.

The records that Brown’s office provided are significant. But even more noteworthy is what her office withheld.

Isaak’s conduct toward McCall was revealed in September 2019, when she resigned while citing his political pressuring and “abuse of authority.” Her resignation came just weeks after Brown’s shocking appointment of Isaak to the Oregon Court of Appeals — an appointment that was made without transparency or even an announcement that there was a vacancy at the court.

Within days of McCall’s resignation, Isaak “declined” the judgeship while describing his reputation as “beyond ethical reproach,” as if it is entirely normal to make such proclamations about oneself.

Media attention to the mess eventually eased up, but was reignited by the 2020 Christmas Eve dump of the Investigation Report authored by attorney Brenda Baumgart of the law firm Stoel Rives.

The records released by Governor Brown’s Office today show that in October 2019, Isaak himself demanded that Brown commence an investigation, stating that it was “necessary to draw out the facts fully and to clear my name.” Astonishingly, Isaak also made the “request” that the investigation be completed “before I depart the Governor’s Office in March [2020].”

It appears that Isaak expected that the “independent investigation” would return results that were favorable to him: That his name would be fully cleared; that it would be cleared before his resignation was effective; and that Brown’s office would arrange and pay for it.

This is not how an “independent investigation” into workplace allegations would normally proceed. Isaak may have hoped or expected that such an “independent investigation” would clear his name, but here he seemed to be assured of it.

The first interview that Baumgart conducted appears to have been with Isaak, on March 31, 2020, followed by three more with unknown witnesses¹ in April 2020. None of those interviews were with Ginger McCall.

McCall first learned of the investigation on July 21, 2020 — fully nine months after Isaak demanded it of his former boss and nearly four months after his first interview. And by the time she first contacted McCall, Baumgart had already billed Brown’s office $17,556.

A few days after receiving that first phone call, McCall emailed her former colleagues at the Public Records Advisory Counsel, alerting them to the situation, stating that she could “not speak to the motivation or timing of this investigation” but giving them notice that some of them “may be contacted” about it. At that time, McCall hadn’t decided how she would “respond to the invitation to participate in the investigation,” maintaining that she had already “said a lot about this [subject] in the public record,” and that “all relevant documents” had already been disclosed.

Three days later, one of those former colleagues — Stephanie Clark of the Secretary of State’s Office — forwarded Ginger McCall’s email to two of Governor Brown’s attorneys, including Dustin Buehler, Misha Isaak’s replacement.²

Buehler didn’t hesitate as Clark had: He forwarded the email to Baumgart just five minutes later.

More interviews followed, but none with McCall, who answered Baumgart’s written questions by email, warning the investigator that if her “answers are misleadingly extracted or manipulated,” she would release the transcript of their email exchange. McCall further cautioned that she was aware of her “rights as a whistleblower.”

In fall 2020, Baumgart did not seem to have much of her investigation completed. In fact, Brown’s staff was still trying to arrange introductions between Baumgart and witnesses as late as October 2, 2020.

In late November, Baumgart and the Brown’s staff experienced technology glitches while transferring files. Their email exchanges from that time indicate that Baumgart was just then — for the first time — receiving primary documents from Brown’s team such as “emails between Misha and Emily [Matasar]” and “Emily’s notes.”

On November 25, Brown’s staff told Baumgart that “after all that I got the wrong records produced so I will continue to work with them on locating the correct record.”

That was the last communication exchanged between the Governor’s Office and Brenda Baumgart until December 17th, a week before the report was released to the public.

Only one more email was exchanged, on December 22nd, when Baumgart unceremoniously sent the report to Brown’s office, who unceremoniously released it to the public the very same day.

How Baumgart got the records she needed to complete her report in the remaining three weeks is a mystery, but it is clear that she did get them. Yet the emails that would show the how and when— that were certainly exchanged between November 25th and December 17th — were purposely withheld from my records request by Governor Brown’s staff.³

Baumgart’s invoices for the months of November and December would list those missing emails, but these two invoices are missing as well.⁴

For a Governor who champions transparency in a state that is dedicated to open government, this is unacceptable.⁵

It is offensive that key records are being withheld that are entirely relevant to the plausibility of a report that purports to “fully clear” the name of Governor Brown’s former attorney — a goal that he openly requested and dubiously achieved. Further, if Baumgart was still receiving records from Brown’s office in late November, it is incredible that she was able to write a coherent 57-page report in that remaining month.⁶

And “simply not credible” is a perfect postscript for it.

¹ Baumgart’s invoices are not well-itemized, and the entries do not name the witnesses that she interviewed.

² Stephanie Clark did it again in August, forwarding a second email related to the investigation into Misha Isaak to the Governor’s staff.

³ Governor Brown’s office insists that it released everything related to this Investigation Report, and only redacted or withheld items that included “sensitive financial information,” “information of a personal nature,” or “private log-in information for conference calls.” That does not explain the missing emails or invoices.

⁴ There had been eighteen status conferences between Baumgart and the Governor’s office in the six-month span prior to November. It is nearly impossible to believe that there were none in November, the month leading up to the report’s release. Side note, those eighteen status conferences cost approximately $1700.

⁵ It’s also telling that Governor Brown’s Public Records Log still has, at the top of the page, “Notable Releases” including “Former Governor Kitzhaber’s emails and Cylvia Hayes emails. I’m certain that there are more recent and more notable records releases.

⁶ Baumgart didn’t even begin analyzing her findings and creating an outline for the report until October 28, 2020.

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