Commissioner says he gave administrator low grades for CleanLane ‘debacles,’ not retaliation

Presenter: Commissioner David Loveall denied retaliation in giving Lane County’s administrator a low score on his annual performance review. In Harris Hall with commissioners Feb. 18, he said he’s rated Steve Mokrohisky’s performance as a 1 out of a possible 5 the past two years in a row. He says the county administrator deserves a low grade after approving the final CleanLane contract. Commissioner Loveall:

Commissioner David Loveall: Reportedly, according to the full investigative report, Human Services director erroneously documented my previous scores of performance given by me toward the county administrator to falsify and justify retaliation. 

According to the HR director (who doesn’t have supporting documentation stated), I gave Mr. Mokrohisky a ‘2’ grade in 2024, when in fact a ‘1’ grade was given in 2024 and a ‘1’ grade was given in 2025 and a ‘2’ grade was given in 2023. These scores are not retaliatory, but consistent.

Other things that affect his performance are the changes in the draft contract I have here on the CleanLane project. Two key paragraphs shifted liability off of a shared liability contract and story that this board was told and voted on into one where the county suffers all of the liability on a $174 million contract, an amount of money that could potentially bankrupt the county. We were not informed of that before a second vote.

I would assume and bet that the board would’ve voted very differently having known this information. There’s other things about land use debacles and material requirements that we have about this contract that have not been passed to the board, that is part of the administrator’s job. So I hold that also in his performance review.

Presenter: He also said elected officials answer to voters, not to county staff. David Loveall. 

Commissioner David Loveall: Elected officials are not subject to employee discipline, standards or policy. We are subject only to the voters. They decide by casting their vote, if how we are conducting ourselves is in line with their desires. I work for them, not an administrator.

The First Amendment guarantees freedom of speech, freedom of religion. As a citizen of this country, even if I’m an elected official, I’m guaranteed these rights also. What I say, you may not like, it may even offend you, yet it doesn’t make it actionable to some policy arbitrarily applied.

The investigative report was hurriedly put out into the public by staff who inserted themselves into the political process without formal board representation or presentation or authorization with known factual errors the outside hired county counsel knew and the county administrator knew, allegedly.

Its intent was not for transparent communication, but for maximum damaging effect to a sitting commissioner. It was erroneously stated, and the public investigation was released with quote, ‘a vote from the Board of Lane County Commissioners.’

I never saw that vote. Who authorized its release? It appears as if ad hoc decision was made by the board and if so, that’s a blatant disregard to Oregon ethics and a violation. Looking at the investigation, bear in mind there is no crime, zero actual damages to any alleged victims, no clear definition of the standards of retaliation other than the disdain to words and false accusations as to my intentions.

Presenter: To set the stage for the day’s events, the outside attorney representing Lane County, Jose Klein: 

Jose Klein (Klein Munsinger LLC): I’ll just note that on Feb. 1, Mountain Lakes Employment Investigations (LLC) completed its investigation. On Feb. 2, Commissioner Loveall was notified of the outcome of that investigation and the fact that each of the allegations that the investigator had investigated were sustained.

On Feb. 3, the board met in executive session, the outcome of which was a direction for me to prepare a ‘condensation’ and to provide that condensation to affected parties, including Commissioner Lovell, by Feb. 9, and that was done. The board also directed the county to release that condensation to the public on Feb. 10, and that was done.

Presenter: At the Feb. 18 meeting, Commissioner Loveall then exercised his right to an open hearing. 

Commissioner David Loveall: Pursuant then to ORS 192.660(2)(b), I’m requesting an open meeting to consider the allegations that I have violated Lane County personnel policies. An executive session is currently planned pursuant to ORS 192.660(2)(b), to consider the dismissal or discipline of or to hear the complaints or charges brought against the public officer, employee, staff member, or individual agent, who does not request an open hearing.

However, as I prepared for that meeting, it became clear to me that I’m unable to meaningfully respond to an investigative ‘condensation’ or defend myself because I have not been provided the full investigative report as required by due process. The other commissioners who will be considering the allegations made against me have also been denied the full investigative report, including evidence, which further violates due process.

I request an open meeting after the full report and evidence has been provided as required by law. I would also like my attorney Jill Gibson from the firm Gibson P.C. to make additional comments pertaining to this issue during this public proceeding.

Jill Gibson: I’m Jill Gibson. I represent David Loveall. I just want to briefly address Commissioner Loveall’s right to request an open hearing on these allegations. That’s from ORS 192.660, subsection (2)(b). There’s no time limitation for his request and the legislature’s silence on that means he can request that at any time… So my opinion is that his request now for an open meeting is, is effective.

I have reviewed generally the process that this board has used over the last few months in investigating allegations against the commissioner. I have reviewed this ‘Condensation Report’—which in my opinion is a joke—and I want to raise three general problems.

First, the allegations against the commissioner and the investigation are premised on the belief that the Lane County Administrative Procedures Manual applies to elected officials. It does not. Those are policies that were created by staff. The investigative report is premised on an incorrect belief that the policies apply here and they simply do not.

Oregon courts have consistently recognized that counties cannot use personnel policies to usurp the statutory authority of elected officials. Staff members cannot draft personnel policies to impose discipline on the very elected officials that control that staff. The court said that elected officials are fundamentally different than employees and that they quote, ‘are not under the authority or charge of any supervisory person or entity other than the electorate itself.’

The 9th Circuit has also weighed in on this, and I’m going to quote here, ’cause it’s very important that I get these words correct. That 9th Circuit stated, ‘Elected officials have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them and may be represented in governmental debates by the person they have elected to represent them.’

The court went on to say, ‘Elected officials have the right to enter the field of political controversy, and the role that elected officials play in our society makes it all the more imperative that they are allowed to freely express themselves.’

The court decided that they’re aware of no other case that upheld the expulsion or exclusion of elected officials from their office due to protected speech. Yet that is what has happened here. Commissioner Loveall has been put on a safety plan and prevented from coming to this office by staff, and he was put on that safety plan because he wrote a salutation on a birthday card that said ‘Blessings,’ something that he had no idea would be found offensive to the person he was writing the card to—a word that any reasonable person would not take offense to.

The second major problem I see with this investigation and the process is that Commissioner Loveall’s freedom of speech has been violated. Every alleged violation noted in this condensation of the investigation is premised on something that Commissioner Loveall said, and the county cannot discipline him for something he says. The voters put him in this office and only the voters can exclude him from this office.

Thirdly, even if the personnel rules did apply, there are numerous due process problems with the investigative process. As you know, a summary of the investigative report with conclusions was provided to the public before Commissioner Loveall ever had a chance to respond in writing. That’s just basic due process that the accused has the right to respond to the allegations made against him.

Again, he’s an elected official. That’s what he’s elected to do, is speak to the public and speak to the media. That’s why his voters elected him.

He’s apparently in violation for the grade he gave the county administrator. That’s his job. The county administrator serves at the pleasure of the commissioners. The commissioners have the authority to hire him and fire him, and you have the authority to rate his work.

The administrator didn’t like the score he got. That’s Commissioner Loveall’s prerogative to give him the score he wants to give him and the administrator claims that it was retaliation for forwarding complaints to HR. That’s incorrect. He will discuss the exact reasons why he gave the county administrator a low performance score.

The ‘Condensation’ also concludes that Commissioner Loveall violated policy by defending himself. Again, this is Due Process 101. People have the right to defend themselves to the public, to the media, to their friends.

So let me be very clear. Commissioner Loveall has very strong legal claims that the investigative process violated his rights to due process, freedom of speech, freedom of religion, his liberty interest, and I have advised him to file a lawsuit. I don’t say that lightly. Many times I honestly advise clients not to file a lawsuit, ’cause I don’t like to lose. And I don’t like clients to pay me money if I think they’re not going to win.

I don’t have those doubts in this case.

Presenter: After an executive session, the three commissioners who supported the CleanLane project also supported a motion asking Commissioner Loveall to issue an apology. Commissioner Heather Buch:

Commissioner Heather Buch: I move that we direct staff and attorneys to prepare a statement of unity for those reporting discrimination and harassment for adoption at the next regularly scheduled board meeting and that Commissioner Loveall issue an apology that acknowledges the harms of people affected and acknowledges the sustained allegations in Mountain Lakes Employment Investigation and issue that no later than our next regularly scheduled board meeting, in coordination between you and his attorney. 

Presenter: The two ‘No’ votes on the CleanLane project also opposed the motion. Commissioner Ryan Ceniga:

Commissioner Ryan Ceniga: I will not be supporting this motion. I believe this process has been flawed since the start, and I think the county has issued some bad advice and I have concerns about our liability at this point.

Presenter: Commissioner David Loveall speaks out, saying he was targeted politically for criticizing the CleanLane project. He says commissioners never saw the final contract, which left the county with sole liability for the $174 million project. It’s an amount, he says, that could bankrupt Lane County.