Tina Kotek's no good, very bad weekend
Former OLCC director alleges Kotek fired him because La Mota wanted her to
Unless your weekend has involved a serious physical injury or emergency dental surgery, it’s probably been better than Oregon Governor Tina Kotek’s weekend.
Willamette Week reported that Steve Marks, the former director of the Oregon Liquor and Cannabis Commission, filed Friday a tort claims act notice stating he intends to sue the State of Oregon for wrongful discharge because he alleges Kotek forced him to resign at the request of big donor Rosa Cazares who, along with her partner Aaron Mitchell and their cannabis company La Mota, contributed $68,000 to Kotek’s 2022 governor campaign.
On February 1, Marks, who had led the OLCC for nearly a decade, told his staff Kotek had asked him to resign. That same day, then Secretary of State Shemia Fagan’s office circulated a much-anticipated - and, as it turns out, La Mota shaped and edited - audit critical of the OLCC’s regulation of cannabis businesses. Fagan resigned earlier this year after the disclosure of a $10,000-per-month consulting contract with La Mota’s sister company. Cazares, Mitchell and La Mota had additionally contributed $45,000 to Fagan’s campaign.
The legal theory of Marks’s claim, as described by Willamette Week (I haven’t yet seen the notice itself [See important update below]), coincides with something I wrote back on May 7, “Kotek delivered big win for big donor La Mota.” It’s worth reading or re-reading that piece in full now, but here’s the gist:
Cazares and Mitchell had invested heavily in Kotek, as they had Fagan. Marks, in addition to crafting the cannabis regulations the La Mota team hated, had pushed back on an early draft of the audit, saying it read like a cannabis industry blog post. Marks was a major obstacle, perhaps the major obstacle, to La Mota’s goal of relaxing cannabis regulations.
And now he’s gone. Kotek’s office says that she did not fire Marks “in response to input” from La Mota or Fagan, according to The Oregonian. But she also wrote that she fired him before she learned about bourbongate. And she has declined to elaborate further on why she fired Marks.
Bourbongate is shorthand for the practice of OLCC officials, including Marks, setting aside rare bottles of bourbon for their own use. Kotek’s February 8 letter, in which she clarifies that her firing of Marks happened before she learned about bourbongate is here.
Bill Gary, Marks’s attorney according to Willamette Week, filed the tort claim notice pursuant to Oregon’s Tort Claims Act (beginning with ORS 30.260), which defines the process for suing the State of Oregon and people, like Tina Kotek, who work for it. The Act requires a plaintiff to provide the state with written notice of the claim within 180 days after the alleged loss or injury giving rise to the claim. The fact that we approach 180 days after Marks told staff Kotek asked him to resign, and the date of his actual resignation, February 15, explains the timing of Marks’s notice.
The filing of the notice is very bad news for Kotek. While the filing of the notice does not guarantee Marks will sue Kotek over his firing, it is a prerequisite to doing so. If Marks does sue on the “La Mota made her do it” theory outlined in the notice, he will be entitled to discovery, including document production and depositions of officials including Kotek, into the circumstances leading to his termination. That discovery will focus on communications between Kotek and her staff, Cazares, Mitchell and Fagan and her staff regarding Marks.
The product of the discovery may well be legally harmful to Kotek and the state but it is nearly certain to be politically harmful. Kotek thus far has refused to elaborate upon the reasons she forced Marks to resign beyond two parameters: (1) that she asked for his resignation before learning of bourbongate; and (2) that she did not fire Marks “in response to input” from La Mota or Fagan. Marks’s lawsuit would likely delve into how La Mota’s well-known displeasure with Marks may have influenced Kotek’s decision to fire him, even if that decision was not directly “in response to input” given to Kotek by La Mota and friends.
After La Mota and Fagan became politically radioactive, Kotek’s campaign donated to Oregon Food Bank, a sum similar to her pre-election haul from team La Mota. She and other Oregon Democrats who had benefitted from La Mota’s largesse sought to distance themselves from the company. Marks’s threatened lawsuit promises to keep in the news Kotek’s formerly close and friendly relationship with Cazares, Mitchell and La Mota.
A Marks lawsuit would tread much of the same discovery ground as the pending federal grand jury inquiry into Fagan’s relationship with La Mota and its impact on various state agencies. But a civil lawsuit presents unique political threats to Kotek. Civil litigants are, absent agreement or court order to the contrary, free to publicize embarrassing things they learn in discovery, and often have a litigation incentive to do so when the defendant is sensitive to public opinion. Like, say, a sitting governor likely preparing to run for re-election in 2026.
Kotek and the State of Oregon will be represented by the Oregon Department of Justice and, perhaps, attorneys hired by the state’s insurer, in any claim brought by Marks. Kotek and likely fellow Democrat and DOJ boss Attorney General Ellen Rosenblum would almost certainly like any claim by Marks to be settled before discovery and maybe even before a formal lawsuit is filed.
Such a settlement would allow Kotek and her Democratic allies to cut off a source of harmful political news at taxpayers’ expense. The most cynical outcome is also the most likely. This is Oregon, after all.
Update: After I published, a helpful reader sent me Marks’s tort claims notice, which you can read for yourself here. It largely summarizes previously reported information along the lines I outline above, but it does provide at least one very important new detail:
The involvement of an Oregon DOJ attorney in the process of ousting Marks - after Kotek told him to resign but before he had formally done so - means that attorney and perhaps others in DOJ are witnesses relevant to the lawsuit. Attorneys typically cannot represent a party in a lawsuit in which they may be a witness.
So, Oregon DOJ and Attorney General Rosenblum will and should presumably be unable to represent Kotek and the State of Oregon in the Marks matter. If DOJ is out, the defense would be handled by outside counsel, perhaps obtained by the State of Oregon’s insurer.
There has been no statement from DOJ or Kotek relating to Marks’s tort claims notice, so we don’t yet know DOJ’s position on its involvement in the threatened claim.
I was both a very active Democrat and an elected DA for over 20 years. During almost all that time I represented Oregon on the Board of Directors of the National District Attorneys Association, where I always took, as it turns out, false pride, in the "cleanliness" of Oregon politics.
Turns out Oregon has become increasingly "transactional," not only in gross felonies (like the La Mota/Fagan scandal) but in many millions of dollars distributed to mysterious "non profits," few of which have filed required IRS 990 forms, without which there is not even the gossamer of accountability.
Before anyone vest too much in the appalling behavior of powerful Democrats, remember the ongoing shenanigans of GOP legislators like Greg Smith, who seems to think he lives in an alternate universe when it comes to conflicts of interests.
As Shakespeare said (through the Duke) at the rend of Romeo & Juliette: "A plague on both your houses!"
Although I think the likelihood of a quick and quiet settlement is the most probable outcome I still have high hopes that the feds will come through and that will be the stimulus for Mitchell, Cazares or Fagan to throw a few other colleagues under the bus