A secret 13-month Oregon Department of Justice (DOJ) criminal investigation, launched by Lincoln City City Attorney, Richard Appicello, against Mayor Don Williams, and one of his supporters, transparency advocate Ross Smith, has been dropped.

On September 28, 2016, DOJ Sr. Assistant Attorney General Matthew McCauley wrote Lincoln County District Attorney Michele Branam, stating “there is an insufficient factual basis to pursue criminal charges against either Don Williams or Ross Smith in this matter.”

The cases against Williams and Smith were dropped just one day after Smith wrote Lincoln County Circuit Court Judge Thomas Branford, alleging Appicello made numerous false statements against him in a July 20th letter to Smith, which Appicello admitted authoring.
The closing of the investigation marks the end to three failed attempts to prosecute and discredit Mayor Williams, who was elected in a landslide in Nov. 2014, on a platform of providing affordable housing and job growth.

A previously undisclosed letter Appicello wrote alleging both Williams and Smith had committed crimes was released last week by the Oregon DOJ, in response to a Nov. 2015 records request made by Smith. Appicello sent the 5-page letter in Sep. 2015 to Ronald Bersin, Executive Director of the Oregon Government Ethics Commission (OGEC), charging Williams with criminal misconduct.

“Whether or not Mr. Williams will be criminally prosecuted (for official misconduct under ORS 162.415 for unauthorized release of confidential information) will be left to a special prosecutor” wrote Appicello. Violating ORS 162.415 is a Class A misdemeanor, carrying a 1-year prison term, and a $6,250 fine.

The document Appicello alleged was  confidential was a 315-page ethics complaint Appicello had drafted against Williams, which was submitted to OGEC in Aug. 2015. Williams said he released the complaint to the press shortly after receiving it from OGEC, because he wanted to clear his name, and because an OGEC representative had twice told him he didn’t need to keep the complaint under wraps.

But Appicello claimed the ethics complaint should not have been disclosed arguing it contained “confidential executive session excerpts” of private city council meetings. Smith, a staunch supporter of Williams, then sent a 9-page letter to OGEC’s lawyers, and convinced them to release the complaint to the public.

Williams was cleared of the ethics charges by OGEC in Oct. 2015, in a unanimous 5-0 decision, with their lead investigator, Diane Gould, referring to Appicello as an “instigator” in the messy affair.

In Aug, 2015, the Lincoln City Council authorized a separate investigation of Williams, and hired an outside attorney, Russell Poppe, to interview dozens of citizens, including several of the mayor’s supporters. The 13-month investigation, costing taxpayers an estimated $50,000 or more, concluded last month on the condition that Williams offer an apology for “possibly” violating city council rules.

Afterwards, the city council voted 4-1 to keep all details of Poppe’s investigation secret, claiming attorney/client privilege. Williams questioned that claim since Poppe told the city council on Aug. 15th that he didn’t represent the City in any legal capacity, but was hired simply to investigate and present a report.
Later in Appicello’s letter, he turns his attention to Smith, who he charges with violating ORS 163.275, when Smith “attempted to coerce” City Recorder Cathy Steere by sending her a public records request for the ethics complaint in Sep. 2015. Coercion (ORS 163.275) is a Class C felony, carrying a 5-year prison term, and a $125,000 fine.

According to Assistant Attorney General McCauley’s letter, Appicello had charged Smith with numerous crimes, including “criminal impersonation, stalking, coercion, solicitation, and the unauthorized practice of law.” Criminal impersonation (ORS 162.365), Stalking (ORS 163.732), and Solicitation (ORS 161.435) are Class A misdemeanors (1-year prison/$6,250 fine). It is unclear what the penalty is for the unauthorized practice of law (ORS 9.160).

The charges against Smith came just one month after Smith had filed suit against Lincoln City in circuit court in Aug. 2015. In his suit, Smith claims the city council frequently violated Oregon’s Public Meetings Law over the last 6 years, including holding 59 secret meetings, and discussing and deciding on forbidden topics.

Smith said he filed the suit “not only to protect our mayor, but to protect the rights of the 1,700 citizens who elected him, because I show the city council did not follow the law in filing the ethics charges, or authorizing the Poppe investigation.’’

Smith questions if the charges against him were due to his filing the suit. “Claiming my respectful records request was criminal coercion is beyond the pale. Appicello just cooked that up to try to silence me, since I was challenging his attempts to unseat our mayor.” Smith said.

This July, Smith filed a second suit against the City, claiming the city council has been violating not only Oregon’s Public Meetings Law, but the City’s own municipal code, for several years, by holding private interviews of applicants, and holding secret votes to appoint city councilors, planning commissioners, and others.

While the Court is expected to rule on the first suit soon, Smith submitted a binding offer last week to the city council to drop both lawsuits, if council “apologizes to Mayor Don Williams, the staff and the citizens of Lincoln City”, for having “possibly violated Oregon Public Meetings laws.” The city council rejected his offer, without discussion.

“I guess our city council would rather waste our money on attorneys, than admit they might have acted improperly” Smith said. “I just hope our voters will elect leaders that will work openly, and with each other, and our mayor, because that’s certainly what our citizens deserve after all this.”

Asked to comment on the DOJ investigation, Williams replied “I had no idea when the investigation began, who was accusing me, or what was being alleged. Frankly, I’m disgusted this was all done at taxpayer expense, because it was a complete waste of time for everyone involved.”

But in the end, Williams remains surprisingly optimistic. “I’m just thankful we can put this all behind us, and focus on addressing real issues, like my 6-point plan to build more affordable housing, which I campaigned on, and have been trying to implement since I was elected.”