Bar complaint filed against Nisley, Wolf

Ellis alleged in his ethics complaint to the Oregon State Bar that Nisley and Wolf violated bar rules relating to fairness and truthfulness.

Summarized, Ellis alleged that both Nisley and Wolf knew about a 2011 notice of discipline, detailing Kienlen’s demotion for lying. The 2011 notice of discipline was the basis for Ellis’ decision to place Kienlen on what is known as a Brady list — an administrative punishment that bans an officer from testifying as a state witness.

“By any Brady standard, even if he was not placed on the Wasco (County) DA Brady list, they had a duty to disclose the letter in any case where he could appear as a witness. Neither one disclosed this information to defense attorneys defending cases in which Officer Kienlen was a witness. They continued to (use) him as a witness without disclosing evidence regarding his credibility through 2020,” Ellis wrote in his letter.

Ellis alleged Nisley disclosed evidence to judges, attorneys, and staff “that made it appear he was being entirely forthcoming regarding the evidence he had in his possession. However, none of the disclosures included the letter disciplining Officer Kienlen for lying. In fact, the disclosures he did make obfuscate and deliberately conceal the fact that the letter exists.”

Nisley in response refuted, through his lawyer, that the non-disclosures were a violation of Brady rules, since “the Kienlen material here,” namely the notice of discipline, “which involves minor misrepresentations to other officers about personal matters, is not appropriate impeachment under well settled Oregon evidence law.”

Ellis then alleged, regarding Wolf, that even though she knew about Kienlen’s demotion, “she continued to prosecute cases with Officer Kienlen as a witness, including assisting with the Kevin Hester Case.”

The defendant in that case, Kevin Hester, later had his case dismissed by the Wasco County DA office in June 2021, an Oregon court records search shows.

Wolf responded through her lawyer, arguing that her relationship with Kienlen, “however described, did not constitute Brady material.

“There is no authority of which I am aware that suggests that evidence of the relationship between a police officer and a prosecutor — be it ‘close,’ ‘personal,’ or otherwise — constitutes impeachment evidence under Brady and its progeny.”

Wolf’s attorney also reiterated in her response that at no time after Kienlen’s affadavit attesting to their friendship “did her relationship with Officer Kienlen ever develop into anything more than a close, personal friendship.”

To recap, Kienlen, then a Sergeant with The Dalles City Police, was disciplined in 2011 after it was uncovered by then-Police Chief Jay Waterbury that Kienlen had violated department policy on truthfulness for an incident that stemmed from a conference he attended earlier that year. According to a 2011 notice of discipline letter, Waterbury demoted Kienlen to Patrol Officer for lying to his fellow officers about where he was staying at the time of the conference. Waterbury discovered that Kienlen had lied about staying with a cousin during the conference, when in fact he had shared a hotel room with former Deputy DA Wolf.

Kienlen testified in a July 2010 affadavit denying an affair between him and Wolf, saying they were “just friends.”

The incident with the hotel room hadn’t been disclosed to the public until earlier this year, when newly elected District Attorney Ellis announced he had found the 2011 notice of discipline “buried in former Wasco County District Attorney Eric Nisley’s desk.”

The finding prompted Ellis to initiate a review of cases where Kienlen was a primary witness as well as a Brady investigation into the officer — which saw the officer placed on a Tier 1 Brady list. Kienlen was the first officer from Wasco County to receive such a consequence. Prompted by the results of the Brady investigation, city officials terminated the officer.

Earlier this month, Kienlen announced his intentions to sue the City of The Dalles for wrongful termination.

A Wasco County DA-led review of cases is still ongoing and has, as of March, led to nine case dismissals. In at least one instance, a defendant was let out of Northern Oregon Regional Correctional Facility in The Dalles, only to find their sentence reduced from 60 days in county jail to 18 months of probation.

Bar complaint process

A spokesperson for the Oregon State Bar outlined the process of an ethics complaint for Columbia Gorge News. An ethics complaint, should it be seen through to a formal hearing and final decision, could take years to realize its conclusion, she said.

In this case, the ethics complaint is in the earliest stage of processing — a screening out of information irrelevant to the matter at hand.

At this stage, a counselor from the state bar’s Client Assistance Office is receiving information, the initial complaint as well as responses from the defendants. The counselor can then decide if there is sufficient basis to warrant further investigation. If so, the complaint will be referred to the Disciplinary Counsel’s Office, another form of filtering and talking in additional information. If that counselor finds sufficient information to proceed to the next stage, the matter then lands on the desks of the State Professional Responsibility Board, a composition of eight lawyers and two members of the public, which then decides if the case requires a formal hearing. If so, then the case is handed off to a trial panel who would perform a formal trial based on the evidence collected on the case. The trial panel would issue a written decision, including findings of fact, conclusions and a disposition regarding the charges.