An Oregon legislator is seeking to avoid being deposed in a lawsuit alleging he destroyed text messages and withheld public documents in violation of the state’s public records law in his role as the economic development director for Malheur County.
Greg Smith, a Heppner Republican who has represented House District 57 since 2001, is seeking a court order to quash a deposition in a lawsuit filed by the Malheur Enterprise, a Vale-based newspaper and its publisher and editor, Les Zaitz.
Zaitz is also the editor of Salem Reporter.
Dan Norris, the Enterprise’s attorney in the suit, said Smith’s attorneys had informed him the state representative would not appear for a deposition that had been scheduled in Vale for Thursday, Dec. 1.
“From our perspective he’s been legally served and is obligated to appear Dec. 1,” Norris said. “We’ll sort it out later with the judge whether his conduct is acceptable.”
Smith did not appear in Vale as scheduled.
A deposition is an out-of-court proceeding where attorneys question witnesses who appear under oath to tell the truth. They are generally used to gather information for a case.
The timing of Smith’s deposition is at issue because Oregon law protects state legislators from facing civil court actions while the legislature is in session. The 2023 session begins in January and will likely run through June.
Smith and his attorney Jessica Schuh did not respond to calls from Salem Reporter Wednesday. Schuh and attorney William Ohle, who is also representing Smith, also did not respond to an email.
The suit, filed in September in Malheur County Circuit Court, alleges Smith destroyed text messages the newspaper sought as part of its ongoing reporting on project delays and cost overruns for an onion shipping center, the Treasure Valley Reload Center north of Nyssa. It also names Smith’s consulting company, Gregory Smith & Company, the Malheur County Development Corp. and Malheur County as defendants.
The reload center project is overseen by the development corporation, a public company managed by a board, with Smith retained to manage day-to-day operations.
Smith’s attorneys on Nov. 10 sought to dismiss the case, arguing Smith is not subject to Oregon’s public records law because he is not a “public body.” His attorneys filed a separate motion seeking to stop or limit the deposition.
“It appears that plaintiffs’ inclusion of the Smith Defendants and unsupported claims for damages in this case are grounded in publicity rather than based on cognizable legal claims. To be sure, plaintiffs appear poised to subject Smith to questioning on a wide range of contested but damaging topics that have no bearing whatsoever on the actual claims,” the motion said.
The Enterprise said in its court response that Smith repeatedly accepted and responded to the paper’s public records requests.
“In this matter, Greg Smith was the key actor making virtually all decisions, giving rise to the plaintiffs’ claims. He accepted public records requests, charged unreasonable fees to comply with the public record laws, unlawfully destroyed public records, unlawfully failed to comply with public record requests, ignored the Malheur County District Attorney’s orders to provide public records, and otherwise deliberately withheld public records to prevent the local media from reporting on his mismanagement of the Treasure Valley Reload Center and his contractual obligations to the other defendants in this matter,” the paper’s response said.
The paper’s response also noted that even if the suit against Smith is dismissed, he would remain a key witness in proceedings against the county and would need to be deposed regardless.
The paper has reported and editorialized about the project’s cost overruns and Smith’s economic development work for years. Last week, the Enterprise reported Smith and project leaders didn’t appear to be setting aside payments owed to contractors in an escrow account as required by contract.
Norris said it’s not unheard of for defendants in civil suits to avoid depositions while motions are pending. Representatives of the Malheur County Development Corp. have also said they won’t appear Dec. 1, Norris said, as they’ve filed a similar motion to dismiss the suit.
Elizabeth Polay, the corporation’s attorney, declined to verify her client wouldn’t be appearing or otherwise comment on the suit when reached Wednesday.
But Norris said Smith’s reluctance to appear raises more concerns because of his unavailability during the legislative session.
“He unilaterally has decided he’s not going to appear,” Norris said.