Based on several high profile cases over the past few years, Cogen is gambling that the DOJ investigation will come up empty, allowing him to claim vindication and remain in office for the remainder of his term, which expires December 31, 2014. Whether Cogen runs for reelection is another matter, and one that is fast approaching. But for now, as his mistress Sonia Manhas wanders the private sector looking for work bearing Cogen’s scarlet letter, Cogen himself will watch as this week’s DOJ investigation gets underway, confident of its outcome.
Jeff Cogen is no dummy. A smart lawyer and savvy politician, Cogen’s political star was rising fast until he flew too close to the sun and got torched. But he has seen plenty of DOJ investigations, some up close within Multnomah County itself, to feel less concerned about the DOJ investigators than what his future spousal and child support payments may be. As with most of these types of investigations, the focus will be on whether Cogen’s conduct gives rise to criminal culpability for official misconduct.
Official Misconduct: ORS 162.415
The crime of official misconduct is one of those rare criminal statutes that can only be violated by “a public servant,” which includes public employees like Manhas and elected officials like Cogen. A public servant commits the crime of official misconduct in the first degree if, with the intent to obtain a benefit or to harm another, the servant knowingly performs an act that constitutes an unauthorized exercise in official duties.
For Jeff Cogen to be found criminally culpable for first degree official misconduct, the DOJ must find evidence that:
- Cogen acted in his official capacity;
- Cogen acted with the intent to benefit himself or harm someone else; and
- Cogen’s actions amounted to an unauthorized exercise of his official duties.
Moreover, to support a successful prosecution, each element must be proved beyond a reasonable doubt. While many viewing Cogen’s actions and conduct relating to Ms. Manhas as easily meeting all three elements, past examples of DOJ investigations for criminal misconduct of elected and high-ranking public officials tell a different story.
On August 1, 2005, former Multnomah County District Attorney Mike Schrunk asked the DOJ to investigate former Sheriff Bernie Giusto for his actions related to an “intervention” orchestrated by Mrs. Lee Jeddeloh for her husband, James Jeddeloh and also for the Sheriff’s handing of Mr. Jeddeloh’s application for a concealed handgun license. The DOJ investigation specifically focused on whether Sheriff Giusto’s actions constituted official misconduct. DOJ investigators interviewed 21 witnesses and reviewed hundreds of documents before concluding in January 2007 that Sheriff Giusto committed no criminal act. While Giusto eventually retired due to a potential DPSST decertification matter, his resignation was not due to a DOJ finding of official misconduct. [Disclosure: I represented Sheriff Giusto in both his DOJ investigation and DPSST matter and he’s a member of the Victoria Taft Blogforce.]
While the DOJ was busy in 2006 investigating Sheriff Giusto, district attorney Schrunk dropped another steaming pile on the Attorney General Hardy Meyer’s doorstep. This time, Schrunk asked DOJ to investigate former county chair Diane Linn for possible criminal misconduct related to tampering with public records. The timing could not have been worse for Linn, who was already notoriously known as the lead singer for Diane Linn and the Mean Girls. Schrunk’s request came at the end of April, just as ballots went out two weeks before the May primary election. Linn understandably charged the investigation and its timing were politically motivated. Voters didn’t care. They booted Linn and gave the job to Ted Wheeler, who rolled to an impressive win with 70 % of the vote against an incumbent female Democrat.
Linn’s investigation involved charges that she had directed a subordinate employee, Laura Bridges, to make changes to Linn’s electronic calendar to make it appear Linn was working when she allegedly was not. The allegations actually related back to 2003, when a reporter for The Oregonian filed a public records request for Linn’s calendar.
The investigation quickly became a nasty political spat involving Schrunk, who was falsely accused by Linn of having contributed to Wheeler’s campaign; and even attorney general Meyers, who had to recuse himself because he had endorsed Linn over Wheeler. Eventually, Peter Shepherd took over the investigation, which dragged on for the rest of Linn’s lame duck year of 2006.
Linn was not investigated for official misconduct, but instead for Tampering with a Public Record (ORS 162.295) and Solicitation of Tampering of Public Records (ORS 166.155(2)(a)). The DOJ wrapped up its report in April 2007, long after Linn had vacated the Multnomah Building. The investigators noted several evidentiary problems in the case which,
“taken in combination, these evidentiary problems lead to the conclusion that there is insufficient evidence to establish a reasonable doubt that Diane Linn committed the crimes of Tampering with Public Records or Solicitation of Tampering with Public Records.”
As a final irony to the Diane Linn case, the Oregonian reporter whose initial public records request in 2003 started the chain reaction that lead to Linn’s departure was David Austin, who now works full time as the spokesperson for Multnomah County. Rather than chasing the Cogen story for the media, Austin has spent the past two weeks on the receiving end of his former colleagues’ questions about his boss’s illicit affair. Welcome to the Multnomah Building.
Most Portlanders, and Oregonians for that matter, are familiar with the Sam Adams affair involving teenagerBeau Breedlove. Besides admitting he lied about the affair to get elected, Adams also withered a six-month DOJ investigation that focused on many of the more prurient details we have all tried to forget. On January 21, 2009, DA Schrunk once again wanted nothing to do with involving his office in another Portland or Multnomah County political mess so, along with Portland Police Chief Rosie Sizer, Schrunk asked new attorney general John Kroger to investigate Adams.
The DOJ Adams investigators focused their attention on three primary areas: 1) sex crimes; 2) official misconduct; and 3) theft. First, investigators wanted to know if Adams had sexual intercourse with Breedlove before June 25, 2005, while Breedlove was under 18 years of age, which could have resulted in criminal charges of Contributing to the Delinquency of a Minor, Sexual Misconduct, and Sex Abuse III. Fortunately for Cogen, Ms. Manhas, a married mother of two, is well past the age of consent.
Adams was also investigated for official misconduct stemming from two unrelated events. First, was the allegation that Adams had hired Amy Ruiz, then a reporter for the Portland Mercury, in 2008 in an effort to stop her from pursuing a story about Adams’ relationship with Breedlove. Adams was also alleged to have used government resources to disseminate false information during his tenure as city commissioner and mayor. Finally, the DOJ investigated Adams for possible theft or theft by deception for statements Adams may have made in connection with his campaign for mayor.
The DOJ investigators interviewed 57 witnesses; reviewed “voluminous” City hall records, including phone and email records; and even conducted a forensic examination of Breedlove’s cell phone and three of Adams’ computers. Six months later, the DOJ wrapped up its investigation with a straightforward summary conclusion:
“We have obtained no evidence that Adams engaged in illegal sexual intercourse with a minor, committed official misconduct, or engaged in theft by deception.”
Like Cogen, Adams was asked to resign, not only by editorial boards, but also those who had supported him in the past. Not surprisingly, the Oregonian, Portland Business Journal and Portland Tribune called for Adams’ resignation. But so did Portland’s leading gay publication, Just Out, which wrote, “”Adams has failed to show the principled character that this publication feels is a basic requirement for an elected official.” Yet Adams, like Cogen today, rebuffed those calls and rode out a criminal investigation that came up empty.
While the previous incidents cited above involved elected officials, another scandal erupted in late 2009 that did not get as much attention as Adams’ affair, but like Cogen’s, involved a power boss and a female subordinate. At the time, John Minnis was the appointed Director of the Department of Public Safety Standards and Training, the state agency that trains and certifies law enforcement officers. Minnis was in charge of DPSST when his agency doggedly sought to decertify Bernie Giusto two years earlier. By the end of 2009, Minnis himself, a former Portland Police officer, was facing his own DOJ investigation, loss of his own police certification and public disgrace.
John Minnis was no stranger to politics or government. Minnis spent 27 years with the Portland Police Bureau. He also served in the Oregon legislature as a Republican legislator. Minnis served in the House from 1985 to 1999, rising to chair both Ways and Means and Judiciary committees. Term limits forced Minnis to switch to the Senate, where he served one term from 2000-2004, representing his east Multnomah County district. Though John Minnis served nearly two decades in the Oregon legislature, his wife, Karen, may have had the bigger impact. Karen Minnis served as speaker of the House in 2003 and 2005 and in 2003, the Republican couple were considered Oregon’s most powerful duo in Salem.
In 2004, John Minnis was appointed by Democratic governor Ted Kulongoski to take over DPSST. Some questioned how a retired Portland Police officer could work full time as a PERS employee for DPSST. The answer is because PPB’s retirement system for police and firefighters for those hired when Minnis was hired is not part of PERS, and is therefore not subject to the retirement work restrictions covering PERS retirees. Thus, Minnis was able to pocket his PPB retirement, collect his $120,000 per year DPSST salary, and build on his PERS retirement account that included nearly 20 years in the legislature. But John Minnis was double dipping in places other than the public’s pocketbook.
According to investigative reports, Minnis had begun pursuing a female subordinate who was a secretary in his office around October 2008. Unlike Cogen’s affair, in which he and Manhas admit was consensual, Minnis was a predator pursuing prey. Minnis’ target was a married female with a known alcohol problem that Minnis exploited on multiple business trips in which they both participated. Minnis’ victim accused him of repeatedly groping her, plying her with alcohol until she passed out and making repeated unwelcome sexual advances toward her.
Things ended badly when she woke up in a hotel room naked with her clothes folded neatly at the end of her bed. Only later did Minnis’ victim learn that Minnis – a former police detective – was careful not to engage in sexual intercourse while she was passed out, but had instead, in his words, “ejaculated on the freaking sheets.” When pressed by investigators whether he had engaged in any sexual contact with his victim, Minnis sounded exasperated when he boasted:
“Look, if I’m gonna have sex with somebody I would like them to participate. I like it to be mutual between the two of us but it’s no fun uh, having sex with yourself or someone who is not participating. That’s not my style. That’s not who I am.”
Governor Kulongoski wasted no time placing his appointed sexual predator on basically house arrest during working hours. On November 23, 2009, Minnis sent an email to DPSST announcing his retirement effective January 1, 2010. Minnis made no apology for his conduct with a DPSST employee, but instead claimed he was retiring from 25 years of state service to enter the private sector. But Minnis’ legacy lingered on a while longer.
Minnis’ victim filed a tort claim with the state and a separate complaint with the Bureau of Labor & Industries, which took the rare and unusual step of actually filing a $2 million complaint against Minnis and DPSST on behalf of Minnis’ victim. The BOLI suit was settled with the state agreeing to pay Minnis’ victim a total of $450,000. Minnis was required to personally pay her $65,000, with the remaining $385,000 coming out of a risk management fund.
By all accounts, Jeff Cogen engaged in no behavior with Manhas remotely related to Minnis’ unwanted sexual aggression. Nevertheless, the county quickly covered itself in Manhas’ severance agreement in which Cogen’s mistress agreed – with her attorney’s blessing – not to sue the county over Cogen’s conduct. But the bigger lesson for Cogen is the result of the DOJ investigation into Minnis’ conduct.
Minnis took his female subordinate with him to at least three DPSST-related business trips, including Bend and San Diego. At each trip, the two ended up in one or both of their hotel rooms, with Minnis doing his best to ensure he didn’t ended up having sex with himself, since “that’s not his style.” Minnis knowingly took advantage of his female assistant’s known substance abuse issues by plying her with vodka until she passed out, only for her to awaken in the morning naked with her clothes folded neatly on her bed. Minnis cost Oregon taxpayers $450,000 to compensate his former assistant for his sexual misconduct. Yet the DOJ investigators concluded:
“ … on November 23, 2009, this office initiated an investigation into possible charges of Official Misconduct by Director John Minnis relating to his personal relationship with an employee of Department of Public Safety Standards and Training. This letter concludes that investigation. In the course of our investigation we interviewed four people, reviewed the former Director’s email account, reviewed hundreds of pages of documents relating to the former Director’s travel expenses and conducted an audio recorded interview of Mr. Minnis.
It is our opinion that we cannot prove Mr. Minnis committed any criminal acts as the Director of the Department of Public Safety Standards and Training in regards to his personal relationship with a particular employee under his supervision.”
Not all DOJ investigations of official misconduct produce empty results. In August 2009 former Marion County Sheriff Russ Isham was discovered by one of his own patrol sergeants, who stumbled upon Isham in his parked SUV. Isham was in uniform with his pants unzipped. In the back seat, Isham’s former campaign manager was covering herself. DOJ investigated and was prepared to charge Isham with first degree official misconduct – not for the tryst with his female staffer in uniform – but for trying to orchestrate a departmental cover up the scandal. Those facts don’t appear to be involved in Cogen’s case.
There remains the possibility that DOJ investigators working the Multnomah Building this week will uncover some yet undisclosed smoking gun that will land Jeff Cogen in a prosecutor’s cross-hairs. But as the high profile incidents above show, Jeff Cogen could have engaged in far worse conduct with Sonia Manhas had still escaped official misconduct charges. Cogen surely knows this as well as did Sam Adams.
Bruce McCain is an attorney, retired Multnomah County Sheriff’s Captain, Reynolds School Board Member and a member of the Victoria Taft Blogforce. His piece first appeared here.