Release of UO Presidential Archives was not illegal, or immoral. So was it improper – or insufficient?

1/29/2015 update: Rich Read of the Oregonian reports on Wednesday’s UO Senate meeting, here:

… Harbaugh sees both farce and tragedy in his latest episode, LibraryGate. He called Coltrane’s email alleging unlawful release of records “outrageously premature judgment on his part, and I’m assuming Tobin Klinger wrote it – but I can’t be sure until I get the next set of presidential archives.”

Klinger is the UO’s senior director of public affairs communications. He has fielded many of the media’s questions concerning the wayward presidential archives.

“There are always embarrassing things in archives,” Harbaugh said. “That’s why historians love them.”

“I can guarantee I’m a better muckraker than I would be a university president,” said Harbaugh, granting that administrators have difficult jobs. “I think there’s a role to play for people to point out what’s wrong with how things are being managed.”

As a search committee seeks the UO’s next president, Harbaugh said the next leader must be able to raise money, to talk to the faculty — which must maintain the university’s status as a top research institution.

“If we get a person who doesn’t know how to do that,” Harbaugh said, “it’ll be the end of this place.”

For the record, I can’t imagine many jobs that are more difficult than running a public university like UO. I’ve got plenty of respect for those who do it well. I think UO could do worse than keeping Interim President Scott Coltrane and Interim Provost Frances Bronet. In fact, from my brief and now prematurely terminated look at the uncensored presidential archives covering the period from Dave Frohnmayer and his provost John Moseley to Mike Gottfredson and his provost Jim Bean, mostly we have. A lot worse.

I’ve posted plenty of negative stuff about Coltrane’s decisions. There’s more in the comments. If you want the happy-face PR fluff, ask Klinger or one of the other Duck flacks. But on balance, I’ll be surprised if Chuck Lillis and Connie Ballmer can find a better candidate for the permanent job. Very surprised.

Diane Dietz of the RegisterGuard reports, here.

… The UO’s new dean of libraries, Adriene Lim, told the gathered faculty on Wednesday that she considers an individual’s right to privacy to be a universal human right.

But she also said that Oregon public records laws “spell out types of records that should be public and available for scrutiny. I’d be the first one to advocate for that openness and ­transparency.”

Coltrane and Lim said the issue of transparency will be reviewed by university officials after Hershner Hunter completes its investigation. [UO M: I’ve made a public records request to Dave Hubin’s Public Records Office for the contract showing what UO’s Interim General Counsel Doug Park has asked HH to do. No response yet.]

The university will “try to increase openness and transparency as much as we can,” Lim said. Coltrane said he’d bring the university’s Office of Public Records to the table.

Harbaugh said Wednesday that that’s what he had in mind when he sought the presidential documents at the archive — after being thwarted by the public records office.

He said he had no intention of violating student privacy laws or damaging the university.

“I’m trying to make a point about the university’s obsessive secrecy, about how it functions, makes decisions and operates as a public agency,” Harbaugh said.

And the Eugene Weekly has this:

Public records are for the public and archivists should not be punished for doing what archivists do — making archives open to the public. The next chapter will appear in The New York Times. Josh Hunt from the Times has been in Eugene this month digging through redacted documents, interviewing the players and weaving his story on the UO in Eugene.

1/29/2015 update: UO is no longer claiming there was anything unlawful or immoral about the release of presidential archives to a library patron – which would be me. Now it’s just “improper”.

Google Tim Clevenger and Tobin Klinger’s official UO “Around the 0” blog for the post. Strange, but none of our well paid strategic communicators would sign their name to it.

Where will this backtracking on prior claims of illegal and immoral archive release end? I’ll go out on a limb and predict that it will turn out that at least one previous UO president kept documents out of the official archives that, legally and morally, should have been preserved for the historical record and made available to the public.

1/28/2015 5:00 PM update: Coltrane and Library Dean Lim commit to public review of UO’s public records transparency problems

That’s my takeaway from their generally positive and constructive statements and the Q&A at today’s Senate meeting. (Archives too). A review of Dave Hubin’s Public records office and its use of fees and delays to hide public records from the public and the press offers the potential for some improvement in trust and transparency at UO, and would make Coltrane a candidate for the Senate’s new “Shared Governance, Trust, and Transparency Award“, which would certainly be a positive outcome from LibraryGate.

Trust, but verify.

Update: Interim President Coltrane gives UO Matters “get out of jail free” card

Also at today’s Senate meeting, after John Bonine (Law) noted that it might actually be possible to construct a (tortured) argument that parts of the “ATTORNEY-CLIENT COMMUNICATION CONFIDENTIAL AND PRIVILEGED” memo from Randy Geller to Bob Berdahl and Dave Hubin recommending dissolving the UO Senate, really do involve attorney-client privilege:

Q: Harbaugh to Coltrane: “Bonine has me worried. Will you waive your attorney-client privilege on this one memo, which I’ve posted on the internet, and help this professor get some sleep tonight?”

A: Coltrane: “Yes. I waive the privilege. You’ve got a get out of jail free card on this one.”

[Not exact quotes, but close.] Now how about cards for the UO archivists?

getoutofjail

1/28/2015 update: Release of Presidential Archives no longer unlawful. Now it’s immoral?

Interim Provost Frances Bronet releases statement. Apparently Scott Coltrane is no longer saying these archives were “unlawfully released”. (Page down for that email). Now it’s Frances Bronet, saying UO has “a moral obligation” to keep documents out of the Presidential Archives. Presumably that’s why UO’s Public Records Office delays and frustrates requests from reporters too.

Presumably whole chapters of the history of the University of Oregon are now going to be deleted from the Presidential Archives, because it would be immoral to leave them there and maybe embarrass someone. I’m no history professor, but this is nuts:

From: Provost Office [mailto:provost@uoregon.edu]
Sent: Wednesday, January 28, 2015 1:12 PM
To: Tobin Klinger
Subject: Documents returned; review continues

Friends and colleagues,

Many of you are following with interest the recent release of electronic documents, which bypassed archival processing procedures, and the university’s efforts to get those documents back.

I am pleased to inform you that the documents have been returned.

Our separate policy and personnel review of this situation will continue. We hired an independent law firm, Hershner Hunter, to complete this inquiry so that we can identify how and why confidential documents were disclosed, and take steps to ensure that something like this never happens again.

What was at stake went beyond a concern that confidential information was shared before being appropriately processed. Of greater concern is that the release violated the trust of the students, parents, faculty members and others who saw the Office of the President as a safe place to share concerns or seek assistance.

We have a moral obligation to maintain the confidentiality ! [sic] of those who see the Office of the President as a point of last resort. This includes those who chose to outline personal struggles in their academic pursuits or parents who might write to seek support for their child during times of personal challenge. Students, parents, faculty and staff need to have confidence that we will follow appropriate procedures to ensure their right to privacy.

One of my greatest concerns throughout this situation has been the way that it has impacted the talented team in our university library. The faculty and staff in UO Libraries are among the most committed and entrusted to carrying out our mission. Their commitment to the ethical standards and values of their professions should stand as a model for us all. They deal with these kinds of complex privacy rights issues on a daily basis and balance them with their advocacy for openness and transparency. They do so with passion and integrity.

Thank you for your understanding of this im! portant [sic] issue.

Sincerely,

Frances Bronet

Acting Senior Vice President and Provost

1/26/2015: Oregonian, RG, WWeek post Blandy and Altmann’s demand for takedown of UO Presidential Archives

Screen Shot 2015-01-26 at 10.22.07 PM

“Zip drive”? I had one of those – back in 1994.

“Remove any documents you have posted on the internet”? You mean the confidential Geller/Berdahl/Hubin legal opinion about dissolving the UO Senate? Sorry guys, that’s not how the internet works. The RG, Oregonian and Internet Archive have already, uh, archived it.

The Diane Dietz report in the RG is here:

The letter to the unnamed professor warned “any further disclosure of confidential documents would be in direct contravention of your responsibility as a member of the faculty.”

The letter was signed by Barbara Altmann, vice provost for Academic Affairs. The professor got the documents from the UO library archives on Dec. 3.

The unnamed professor has not returned documents — which were delivered to the professor electronically — to the university. Two archivists are on leave pending an investigation on how the documents were released.

To date, one document and a set of emails appeared on the UO insider blog uomatters.com published by UO economics professor Bill Harbaugh. The single 14-page document suggested dissolving the University Senate in the wake of the faculty’s vote to form a union in 2012.

The other was a series of emails regarding the drafting of a column that appeared on the editorial page of The Register-Guard on July 14, 2014, and attributed to Robin Holmes, vice president for student life.

The emails suggest that the opinion piece that defended the UO’s handling of a rape allegation was actually drafted by a UO public relations employee.

Can anyone point me to the part of UO’s Faculty Handbook that says professors can be disciplined for refusing to take Randy Geller’s legal opinions off the internet?

The report from Rich Read (two Pulitzers) in the Oregonian is here:

Whatever the case, Coltrane and members of his administration seem desperate to get the material back. They say that release of the confidential information, which Blandy said was “improperly disclosed,” violated a state privacy law and the federal Family Educational Rights and Privacy Act.

Another official signed Blandy’s letter for him in barely legible handwriting, appearing to be that of Barbara Altmann. She holds the identical title of senior vice provost for academic affairs.

The letter says that once the professor returns the electronic documents, officials will review them. “We will ultimately make the documents that are not exempt from disclosure available to all library patrons as part of the university’s archives,” Blandy wrote.

“Ultimately”? Is that sort of promise legally binding? I didn’t think so.

The Nigel Jaquiss (one Pulitzer) report in Willamette Week is here:

Screen Shot 2015-01-26 at 10.35.00 PM

I’m surprised Doug Park hasn’t sent Jaquiss a takedown notice over that Duck © image. FWIW, here’s Scott Coltrane’s “unlawfully released” email again:

Date: January 20, 2015 at 7:39:38 PM PST
From: “President’s Office” <pres@uoregon.edu> Reply-To: pres@uoregon.edu
Subject: Archive release investigation

Dear Colleagues,

We have recently learned that a significant number of archived records from the President’s Office have been unlawfully released. These records contain confidential information about faculty, staff and students, but our current understanding is that no social security numbers, financial information or medical records were shared.

We have launched an investigation of the incident, and we have put staff members on administrative leave, pending that investigation. The information was sent to a university professor, and we have already requested that the professor return the information and refrain from any public release of confidential information. To our knowledge, only one record has been shared externally at this point.

We are committed to taking steps to mitigate the potential injury associated with this situation.

Sincerely,

Scott Coltrane, Interim President

Our President really needs a competent lawyer, or at least a strategic communicator who can backward induct.

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36 Responses to Release of UO Presidential Archives was not illegal, or immoral. So was it improper – or insufficient?

  1. Hippo says:

    Alas, unfortunately for you, there doesn’t seem to actually exist a definitive faculty handbook. Indeed, Doug Blandy seems to be in charge of a potentially ever-changing on-line version. I suppose he could add a provision about posting legal opinions, ex post facto!

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    • Three-Toed Sloth says:

      Instead, we have a collective bargaining agreement. And thank goodness for that.

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  2. David Cuillier (SPJ FOI chair) says:

    Sorry, admins, but you can’t put the toothpaste back in the tube. If they messed up by giving out information protected under FERPA, then it is their fault. Are they going to try to force the Oregonian to return the records, as well? Good luck with that. The bullying tactics by UO administrators are appalling.

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  3. Old Man says:

    UO Matters refers to a “Geller/Berdahl/Hubin legal opinion” proposing the dissolution of Faculty Governance. He links to Randy Geller’s Confidential Memo to Berdahl (cc’d to Hubin) of May 17, 2012. That Geller wrote this memo is apparent, but the implication of support for it by Berdahl and Hubin is without foundation. In fact, no evidence has been presented that anyone in Johnson Hall took the memo seriously.
    Perhaps UO Matters has seen documents indicating that Geller’s proposal was blown off by administrators. If so, it is time for him to say so. If not, the administration might do well to send him such documents as exist. Each day that passes exacerbates faculty distrust of persons who, as far as I can tell, had and have no connection with or sympathy for Randy’s Fantasy.
    Randy is now gone. The clearly identifiable JH sin was to tolerate his destructive presence for so damned long. Let’s forgive the sinners and get on with recovering from the damage done by Randy’s Reign.

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    • GTFatLarge says:

      You don’t need a leaked email that says “yes we should do this” to see that the suggestions made in the legal opinion are being carried out.

      The memo suggests eliminating the University Senate and replacing it with a Faculty Senate with no authority. The policy that the Board of Trustees tried to slip through in December did just this – remove sections from the University’s Policy on Policies that defined the authority of the University Senate to oversee policy creation. The BoT action was sneakier than Randy’s suggestion – rather than eliminate the Senate and replace it, it just stripped authority from the Senate.

      The suggestions to create Presidential advisory groups without Senate involvement is exactly what Gottfredson did with the intercollegiate athletic advisory group.

      Sure, there’s no leaked information that says the Administration is following Randy’s suggestion. But when the Administration is openly working to implement the suggestions in the memo, you don’t need a leak to say they are taking it seriously.

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  4. Andy Stahl says:

    Old Man calls for someone (anyone) to release contemporaneous documents that, if they exist, indicate that JH disregarded Geller’s legal analysis. Doing so might help a bit to recover Berdahl’s and Gottfredson’s reputations. But who cares? They’re history.

    More important is what Coltrane and the Trustees think of Geller’s analysis today. Even more important is not what they think, but how they act. On those scores, it’s not what yesteryear’s documents say that matters, but JH’s unreserved willingness now to release them. The clock is ticking, the jury is deliberating, while it appears that JH is fiddling.

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  5. Trickortreat says:

    I’m stating the obvious here and it is clear JH is freaking out about this. If I could offer the upper admin in JH advice it would that when you operate above board you have nothing to hide or worry about. I sure would like to see what is in all of those documents. There must be some very incriminating information within for JH to be going to such lengths to retrieve them. Who is responsible for ensuring that confidential records do not make their way into the archive? I find it hard to believe that the library staffers would be tasked with that responsibility. If the school tries to throw the two staffers under the bus I hope they sue the school to high hell. JH needs to stop with the shady stuff and hiding behind that absurd attorney-client nonsense. If JH wants to have less problems they should try being upfront and treating the faculty and staff with more respect. When you treat people like shit you can count on any loyalty going out the window.

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  6. just different says:

    I can’t believe Bronet (or whatever strategic communicator is doing the ghostwriting) is trying to spin the administration’s own screwup as “Think of the children!!!” I felt physically ill reading that email–I can only imagine how the people she’s targeting must feel.

    [Editor: some redactions in following:] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, their sleazy smear tactics, their shameless condescension, and their utter contempt for the truth. Nothing is too low for these people.

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    • charlie says:

      Admins do their “think of the children” nonsense whenever they have to rationalize new building additions to the campus. “We HAVE to spend hundreds of millions on spas, dorms, EMUs because the students demand they be built.” When it comes to undergrad supplication for academic support, reduced tuition, no increased fees for athletics, then it becomes, “What do those bastards know?” Incredible….

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  7. New Year Cat says:

    If indeed the archivists “commitment to the ethical standards and values of their professions should stand as a model for us all. They deal with these kinds of complex privacy rights issues on a daily basis and balance them with their advocacy for openness and transparency.” then where exactly was the illegality or the immorality of releasing the records? Not, apparently, in their actions. Thus, not, apparently in the recipient’s actions. So…was it really illegal for the recipient to obtain them? Was it really immoral? It seems unlikely we will ever get an unredacted opinion about that.

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    • just different says:

      In his useful distinction between bullshitting and lying, Harry G. Frankfurt defined bullshitting as not caring whether what you said was true because your actual goal was to further some agenda and not to assert any particular facts. Frankfurt also said that bullshit was far more corrosive than lying because it creates a climate where the truth no longer matters. We’ll never get answers to your questions because everything the administration has said about this has been pure, unadulterated bullshit.

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  8. Economics Teacher says:

    How odd that with all the opinions about the Geller’s “Effect of Faculty Union and SB 242 on Internal Government and Management” nobody has offered any legal critique of his analysis. Union formation has legal implications and not all of them are favorable to the Union. People always want the rights and privileges, but hesitate on the duties and obligations. The memo addressed the restrictions associated with Union membership, under the law. Anybody care to identify specific language from the memo that is legally incorrect?

    Anyone? Anyone?

    https://www.youtube.com/watch?v=uhiCFdWeQfA

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    • just different says:

      I actually did make such a critique in the comments on this blog, but it’s disappeared since UO Matters took that post down. Suffice to say that if you read the law yourself, you’ll see that Geller’s argument that “the faculty has traded its voice in internal government and management for the union’s voice” is bogus.

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      • Clueless says:

        Yes, completely bogus and not supported by the many faculty unions across the country that did not give up their role in shared governance.

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    • Youngin says:

      Legal critque? Geller’s opion was so bad that I can’t imagine it getting a passing grade in a class even remotely related to the subject matter.
      a. Governance =/= Management (this is day 1 of corporate law class level stuff). The repeated use of the phrase “management or governance” conflating them does not make them the same thing.
      b. ORS 243.666 explicitly says that unionization does not limit the ability of public employees to work with managment in other ways:

      Notwithstanding the provisions of subsection (1) of this section, an individual employee or group of employees at any time may present grievances to their employer and have such grievances adjusted, without the intervention of the labor organization, if:
      (a) The adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect; and
      (b) The labor organization has been given opportunity to be present at the adjustment.

      c. The argument about “managerial employees” is nonsense since the statute defines managerial employees and then says “Notwithstanding this subsection, managerial employee does not include faculty members at a community college, college or university” which means that definition does not apply.
      d. The memo has no legal basis to be confidential since Geller also represented the faculty senate (at least that was his claim during the legal services policy fight) and likely to be the subject of litigation and ORS 40.225(4)(e) says there is no privledge in that situation.
      etc

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      • uomatters says:

        Thanks for these references. It would be reassuring to know that UO is no longer relying on Randy Geller for legal advice, but maybe we are – Dave Hubin’s office is still redacting that information from the HLGR invoices, on the basis of “attorney-client privilege”.

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      • Legal Eagle says:

        b) claims that the statutory citation “does not limit” the ability of employees to work with management, yet sub (a) and (b) of the statute clearly place limits. Also, presenting grievances for adjustment does not require any “working with” management in making adjustments.

        c) the definition cited reaffirms that faculty do not manage the University.

        Undoubtedly, the University is a better place without Geller (perhaps the human race would be also), but you have offered nothing that shows how he erred in his legal analysis.

        Surely there is a union attorney who can detail the errors in Geller’s legal analysis.

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      • Legal Eagle says:

        b) claims that the statutory citation “does not limit” the ability of employees to work with management, yet sub (a) and (b) of the statute clearly place limits. Also, presenting grievances for adjustment does not require any “working with” management in making adjustments, it may, but it is not required.

        c) the definition cited reaffirms that faculty do not manage the University.

        Undoubtedly, the University is a better place without Geller (perhaps the human race would be also), but you have offered nothing that shows how he erred in his legal analysis.

        Surely there is a union attorney who can detail the errors in Geller’s legal analysis.

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    • Sojourner says:

      Economics teacher, have you ever visited faculty at Rutgers, Florida State, any SUNY campus, or our own neighbor in Portland? All have faculty unions and all have senates that can be quite feisty and certainly have real governance authority. There are many more across the country. Try getting out once and awhile….

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  9. Ben says:

    Having worked in an Archive at a public university in Oregon, I feel I’m qualified to go out on a limb here and say that the only legal or ethical fault lies in whomever released the files to the Archives, not in the archivists or patron– unless for this particular collection their happens to be an agreement that goes contrary to common practice.

    Under normal procedure, the President’s Office will release the records, and it is their responsibility to redact prior to the release, or to stipulate restricted access. In the Archive in which I worked, the same types of materials described in this case (although impossible to tell 100% since they are vague) are public in other universities.

    In this case, the archivists are scapegoats from an inept Presidents Office. Releasing them, and accepting them by the professor, were both legal and ethical. The ONLY question is whether the professor was ethical in holding on to the records for a few days– a question that can only be answered by an unbiased third party privy to the actual content.

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    • paqwht says:

      If you worked in an Archive, then I’m sure you’ve ready the SAA Core Value Statement – here’s excerpt in case you missed it.

      “As appropriate, archivists place access restrictions on collections to ensure that privacy and confidentiality are maintained, particularly for individuals and groups who have no voice or role in collections’ creation, retention, or public use.”

      So, while the provider of documents has a role so does the archivist.

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  10. Working GTF says:

    “Students, parents, faculty and staff need to have confidence that we will follow appropriate procedures to ensure their right to privacy”

    That sentence was written by a member of the same administration that accessed a sexual assault victim’s private counseling records without her informed consent.

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  11. Dark star says:

    Yes, it is apparent that the President and Library dean are throwing archivists under the bus and scapegoating them for the procedural black hole/ failure in the library’s own records management office and the UO president’s office. Shame! Do not expect an apology to those put on leave while the admin creates a pretext to close records even further behind the paranoid psyches and barricaded doors of Johnson Hall.

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  12. Henry WL says:

    Thou, too, sail on, O Ship of State!
    Sail on, O Union, strong and great!
    Humanity with all its fears,
    With all the hopes of future years,
    Is hanging breathless on thy fate!
    We know what Master laid thy keel,
    What Workmen wrought thy ribs of steel,
    Who made each mast, and sail, and rope,
    What anvils rang, what hammers beat,
    In what a forge and what a heat
    Were shaped the anchors of thy hope!
    Fear not each sudden sound and shock,
    ‘Tis of the wave and not the rock;
    ‘Tis but the flapping of the sail,
    And not a rent made by the gale!
    In spite of rock and tempest’s roar,
    In spite of false lights on the shore,
    Sail on, nor fear to breast the sea!
    Our hearts, our hopes, are all with thee.
    Our hearts, our hopes, our prayers, our tears,
    Our faith triumphant o’er our fears,
    Are all with thee, -are all with thee!

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  13. Deborah says:

    And…on a somewhat different topic: I thought the obit on your dad was very interesting. It sounds as though he was a great man. A patriot. A person who stood up and was outspoken for what he believed in. As they say, the apple doesn’t fall far from the tree.

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  14. anonymous says:

    Thus concludes LibraryGate 2015? In the end, Coltrane’s “leadership” is what was tarnished here. Admin needs to lighten up on soirees live music & H’orderves, while the GTF’s stood on strike outside, and living large, attending Rosebowl & championship game junkets & get their act together. A low blow to try to paint the library staff & or the prof as “wrongdoers” & law breakers. I hope this backfires big time. It was their blunder, and not the fault of any other parties.
    In closing, I would hope the next phase at the U of O, is regarding the successful litigation & firing of Dana Altman. But please, don’t insult us all with a golden parachute for him. What he did was reckless endangerment, & then he lied about “not knowing” the student he recruited, having prior sexual assault issues. Altman has got to go.

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  15. gary crum says:

    Professor Harbaugh: You, sir, are a pain in the ass. That, by the way, is a compliment, not a criticism or an insult. I’m 72 and have spent my life being a “pain in the ass.” I consider it an important and honorable avocation.

    In today’s world, it’s an increasingly important role. There are precious few institutional mechanisms to hold public officials and bureaucrats accountable for their actions. Instead, individuals from both within and outside those public (and private) organizations must be willing to “take the heat’ generated by their questioning and challenging those in power.

    We need, more, not fewer pains in the ass. best wishes, Gary Crum

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  16. anonec says:

    What about the two librarians? Have they been reinstated?

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    • Talisker says:

      No. It looks like they won’t consider reinstatement until after the results of the investigation (which Coltrane is saying will be in a few weeks). So the University continues to punish two library employees for no apparent good reason.

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  17. Silenus says:

    What many of us are still wondering is what the admins either threatened or offered to get UO Matters to do such an about-face. In the interest of transparency, can UO Matters elaborate?

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    • uomatters says:

      The standard Johnson Hall offer is now $940K, in past they’d also cover your beemer payments.

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  18. Pentagon Papers says:

    I’m not sure Prof. Bonine was right that there was any real legal risk here. The Pentagon Papers case established the legality of publishing even “illegally” leaked documents. Consult a media, first amendment lawyer.

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    • uomatters says:

      He didn’t way there was a *legal* risk. I misinterpreted him.

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  19. Lawyer Up says:

    Good practice round of whistle blowing. For next time: http://motherboard.vice.com/read/advice-for-whistleblowers-and-journalists-from-an-nsa-spy-and-snowdens-lawyer

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