To: Dan Kettler <email@example.com>
Toned down version of my article.
STATE AGENCY ‘NULL AND VOIDS' 1ST AND 4TH AMENDMENTS;
KICKS OUT PRESS
By Howard Asinoff
Ever hear of the OBNE? They are the Oregon Board of Naturopathic
Examiners, a state agency located in the state building in Portland. They
are one of the smallest of the state agencies in Oregon. Their job is to
license naturopathic (natural medicine) doctors in Oregon which involves
collecting licensing fees and CE (continuing education) credits and
looking into patient complaints.
On Sept 22nd, 1998, Dr. Brian Mac Coy received a subpoena from the OBNE
that demanded ALL records generated by his office from January through
March 1998. This, in violation of the Fourth Amendment and the applicable
Oregon law (ORS) that gives the OBNE its subpoena powers.
I admire the educated readership of this newspaper for your familiarity
with the 4th Amendment: "The right of the people to be secure in their
persons houses, papers and effects shall not be violated....no warrants
shall issue, but upon probable cause, supported by oath or affirmation
and particularly describing the place to be searched, and the persons or
things to be searched". However, here are the applicable Oregon laws:
ORS 685.225 (2) (e) states that the scope of a subpoena must "pertain
the matter under investigation" and ORS 183.440 (1) states that a
subpoena may be issued "upon a showing of general relevance and
reasonable scope of the evidence sought" thus Oregon law is in accord
with the Fourth Amendment. Board chair, Linda Meloche states that she
did not need to reveal the nature of her agency's complaint. Upon
prodding questions from the Senate Rules Committee in Salem, she further
stated that she really didn't know if there was an affiant for the
subpoena and confessed that she had signed it without having read it.
When Dr. Mac Coy and his attorney received the subpoena, Mac Coy was
advised not to honor it until the nature of any complaint or charge was
revealed, however no charges were levied. Then, in November, 1998, the
agency in concert with Assistant Attorney General, Armonica Gilford,
wrote a Temporary Administrative Rule (TAR) in an attempt to force
compliance with their subpoena. TARs can be adopted for up to six months
without any public scrutiny, however, ORS 183.335 (5) (a) requires an
emergency situation that seriously endangers the public to justify a TAR.
According to Ms. Meloche, Dr. Mac Coy rescheduling his informal hearing
with her agency qualified.
Her agency's final decision was the one year suspension of Dr. Mac Coys'
license basically over the issue of 'preventive injections'. Preventive
injections had been addressed by this agency in 1986 and has never been
officially addressed or changed in any manner since. Mac Coy, who had
been within the 1986 guidelines was forced to leave Oregon in order to
make his livelihood in neighboring Idaho.
These questionable actions prompted my attendance at the agency's regular
meeting on June 12th. At the close of the public portion of that
meeting, I inquired as to the issues to be addressed in executive
session. (Executive Session is closed to the public but open to the press
and is for discussion only. ALL decisions must be made in the public
portion of the meeting.) In response to my request, Ms. Meloche stated
that she 'could not tell me!' I reminded her that according to Public
Meetings Law that "representatives of the news media shall be allowed to
attend executive session" (ORS 192.660-3) and as a member of the press,
it was my intent to do so. She requested identification which I provided
to her from an on-line newspaper.
IMMEDIATELY a debate ensued as to what criteria determines media and
their representation and am I really a member? Surprised to find myself
becoming part of an unfolding story I responded that a 'license' is not
required to be a member of the media; it is protected by the 1st Amendment.
I continued: The real issue is that this board has been accused of violating the
public trust and censorship only confirms these accusations. Ms. Meloche stated
that her agency would have to ‘check out' my credentials. I pointed out that in as
much as a break was coming up her agency personnel could easily check them out
either by means of a local phone call or on-the-web to which she
responded "I don't want to!". She then held a vote barring me from the
pursuing proceedings. The press and public should not be shut out of a
PUBLIC agency's proceedings and cannot be according to the law. Perhaps
our state agencies need to be reminded that they, like us, are not above