The strange and ongoing dispute between Washington County and the state’s public health agency over impaired-driving diversion programs hit a new snag with a judge once again accusing an Oregon Health Authority employee of lying and the agency of “making up their own rules as they go.”
The latest dustup stems from the Oregon Health Authority’s possession of 178 boxes of files from an outside contractor providing probation-type oversight of people in court-mandated diversion programs or on court-ordered supervision as part of impaired-driving cases.
Last week, Washington County Circuit Judge Brandon Thompson issued another sternly worded order, the second one this year, instructing the Oregon Health Authority to review the files and return the ones that involve pending cases or those in which the defendant is the subject of an arrest warrant.
The agency so far has refused, requiring subpoenas and court orders for each one.
Robb Cowie, a spokesperson for the health authority, said the agency has received the order and is conferring with the Oregon Department of Justice.
The rolling disputes broadly deal with the court’s oversight of people convicted of impaired driving and sent to diversion programs, where they may be referred to substance abuse treatment. The health authority licenses and sets standards for treatment programs.
The first dustup centered on whether courts are entitled to know if defendants have complied with treatment or the terms of their probation.
Internal memos show that health authority officials last year told treatment providers and the organizations that serve as conduits to the courts that they don’t have to use any particular disclosure form when communicating with courts about criminal defendants’ progress and that they must comply with “federal and state laws regarding the disclosure of alcohol or drug records.”
Thompson’s latest order relates to the health authority’s handling of nearly 200 Washington County diversion files after the outside contractor that manages diversion changed owners. The files track defendants’ progress and compliance with court-ordered diversion.
Thompson’s order describes the health authority in 2021 obtaining the files from a company that facilitates diversion programs, then failing to give them back. The order says the health agency lacks the legal authority to access and possess the records.
In his order, the judge zeroed in again on the testimony of Marisha Elkins during a July 14 hearing. Elkins previously worked as the health authority’s driving-under-the influence-of-intoxicants coordinator and now holds the position of crisis systems strategist for the agency.
Thompson accused Elkins of lying under oath during an earlier hearing and in his latest ruling reached a similar conclusion, writing that “Ms. Elkins came into this court for a second time and lied under oath.”
Over the summer, Elkins testified about how the agency came to possess the files; Thompson made clear in his order that the health authority should never have had the files to begin with.
“This court finds it troubling that a second hearing and a second opinion are necessary on this matter,” Thompson wrote. “... (T)his the second opinion this court has written ruling that OHA is violating the law and that Ms. Elkins lied under oath.”
Thompson threatened to hold the health authority in contempt if it fails to comply by Feb. 1. He said he would impose a $5,000-a-day fine if the agency fails to meet the deadline.
-- Noelle Crombie; ncrombie@oregonian.com; 503-276-7184; @noellecrombie
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