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

Published 4:30 pm Monday, May 1, 2023

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. On Tuesday, she resigned.

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 continued to call for Fagan to resign and on Tuesday, she did so. Along with auditing state agencies, the secretary of state oversees elections and public records.

If Fagan had not resigned, however, she would not have faced an impeachment effort — because the Oregon Constitution contains no provision to impeach elected executive officeholders.

No mechanism

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 Tina 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 threshold to stop the time-chewing requirement to read bills aloud in full before final passage — the impeachment change never happened.

Now the impeachment issue is back.

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. Its chief co-sponsors are Rep. Bobby Levy, R-Echo, and Rep. Jami Cate, R-Lebanon.

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 the Oregon Constitution to create a power of impeachment of executive branch officials similar to that used by Congress when impeaching a Ppesident. 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.