March 12, 2012
From: the Advisory Committee on Medical Marijuana (ACMM)
To: Mr. John Kroger
Oregon Attorney General
Justice Building
1162 Court Street NE
Salem, OR 97301
RE: Oregon Medical Marijuana Act (OMMA); Perceived conflict of interest in your office counsel and representation
Dear Mr. Kroger,
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident: The people of the state Oregon have recognized the effective medical treatment of marijuana and have expressed through statute their intention for the citizens of Oregon to receive the benefits of medical marijuana through their physicians. (ORS 475.300)
We as the ACMM are prescribed by statute to advise the Oregon Medical Program on the administrative aspects of the program (ORS 475.303); As prescribed by the same statute we are made up of participants and advocates of the Medical Marijuana Act; As the Attorney General, you are charged with representing and advising each department in the State of Oregon government equally; As advocates and participants, we have with continued dismay observed the representation and advice proffered by your office to the administration of the Oregon Medical Marijuana Program, a State Agency, to be contrary to the stated interests of the program; Without exception we have recognized your representation and advice to be contrary to the advocacy of this program, and indeed has been to suppress, reduce, and in all ways further restrict the progress and expansion of this program, in favor of those other agencies who view this program with disfavor; We have observed this to be the case in these areas of representation and advice:
(a) The method by which additional qualifications may be added to the Act. Your advice and representation allowed for administrative rules to establish a panel where half the members were comprised of health professionals who were contrary to medical marijuana as a viable medicine for any treatment. Not surprisingly, this panel was able to increase the number of qualifying conditions by only one (Aggravated Alzheimer ’s disease). This result of your advice is not to the benefit or interest of the stated purpose of our Medical Marijuana Program, or the Medical Marijuana Act.
(b) Your office refused to define ‘Immature plant’ as expressed in ORS 475.306(3). This places many participants in legal jeopardy, satisfying two other of your clients ---Oregon State Police and District Attorneys, who participated in these discussions. Neither agency is mentioned by statute as advisory to the Program, nor certainly is either an advocate of the OMMA. We as the ACMM are the only statutorily created group to advocate for the OMMA and to advise the Program on these issues. Yet your advice was to ignore our advice and conclusions, and to adopt the advice and conclusions by those who are hostile to the OMMA.
(c) Your office advised an application must contain a listed ‘Grow Site’ in order to be complete. This is discriminatory toward those without a grower or grow-site, including those out of state participants granted status in State v. Berringer, 234 Or.App. 665, 229 P.3d 615 (2010). ORS 475.304 prescribes a system for registering valid grow-sites. Nowhere does the statute require a valid grow site to be a patient benefiting from the lawful use and possession of medical marijuana.
(d) In 2010, the Court of Appeals reaffirmed the privacy of the records maintained by OMMP, limiting Law Enforcement access to the records to instances of criminal investigations. (ORS 475.331; Held v Sheriff Hanlin, 239 Or.App. 486, 244 P.3d 895 (2010).) Your office advice on how to administer the program following Held, has been of little of consequence to insuring the privacy of these records from law enforcement inquiries unrelated to criminal investigations. In fact, when Attorney Brian Michaels attempted to discover whether a Sheriff had accessed his client’s information, his request was denied by advice through your office, claiming ‘ongoing investigation.’ There has never been, and there is not now, an ‘ongoing investigation’ of this woman. Instead, this Sheriff used the information to inform her employer that she was a medical marijuana card holder. Your office advised OMMP to never release the information to the cardholder. It is difficult to interpret this advice as being on behalf of the OMMP’s interests, the interests of the citizens it serves, or the Laws it administers.
(e) Recently, we learned your office advised the program to revoke a patient’s medical marijuana card, without hearing or notice requirements of due process, for entering into a DUII diversion for marijuana. This was done at the recommendation of Oregon State Police --- not an advocate of OMMA nor an advisory to the Program. (Please see attached letter written by Attorney Brian Michaels in response to this advice. This letter is also posted on the OMMP website.)
(f) Recently, we learned of your letter to Captain Steve Duvall of Oregon State Police advising him and law enforcement to not return illegally seized marijuana, citing ORS 475.304,, 475.320, and 475.323(2); while omitting any advice to not seize the medicine under ORS 475.324. This advice was a compete misinterpretation of Rosenthal and Kama, as well as Emerald Steel. (Please see attached letter written by Attorney Brian Michaels in response to this advice. This letter is also posted on the OMMP website.)
To the undersigned ACMM these examples represent a complete and single-minded pattern of advice and representation contrary to the interests and benefits of the client to whom you are bound and obligated to represent zealously, and from whom you are charging fees.
As the only statutory body created to advise OMMP, and to advocate for OMMA, these and other more minor instances have led us to conclude your office is failing in its duty and obligation to properly represent and advise this program. Furthermore, as referenced above in (b), (d) and (e) specifically, it is our conclusion that your office is operating under a professional conflict of interest between your responsibilities to our agency and your responsibilities to the Oregon State Police and the District Attorneys of Oregon.
A physician member of ACMM has stated his perceptions with such eloquence:
“Admittedly, I'm unfamiliar with the subtleties, but having some contact with the people involved, I've found that the AG's office has a real affinity with law enforcement and seems to look at OMMP as the state's bastard child-- hardly tolerable and with little real concern for the program or patients. It's hard for me to remember when they've taken a helpful position on patient or grower matters when law enforcement has felt otherwise.
“My personal view is that it would be remarkably helpful if legal advice could be provided by an entity that really wanted to assist and support us as their client, without political or other influences getting in the way.”
In our view, charging fees from this Agency for this kind of advice and representation can continue no longer. Accordingly, we advise OMMP to no longer seek representation from your office; and we request your office to ask the governor for a mechanism to appoint independent counsel to avoid further placing our state’s agencies in the professional quagmire of an appearance of conflict of interest.
Respectfully,
Todd Dalotto, ACMM Chair
Cc: Gov. John Kitzhaber, Sen. Floyd Prozanski, Rep. Jeff Barker, Rep. Wayne Krieger
March 12, 2012
Advisory Committee on Medical Marijuana
Todd Dalotto, Chair
Jim Klahr, Vice Chair
Sandee Burbank
Alan Cohn, M.D.
Alice Ivany
Laird Funk
Gerry Lehrburger, M.D.
Brian Michaels
Christine McGarvin, MSSW
Stormy Ray
Ben Mackaness
ACMM
Email: OHD.ACMM@state.or.us
ACMM-c/o OMMP
Mail:
800 NE Oregon St.
Portland, OR 97232
Sunday, May 12, 2013 at 07:40PM 
