“No harm other than embarrassment to a few administrators has occurred as a result of the release.”

That’s the RG Editorial board discussing the release of the UO Presidential Archives. On the other hand the damage to UO’s reputation and the careers of James Fox and Kira Homo, from Interim President Coltrane’s botched over-reaction, has been immense.

Most of the initial embarrassment was to former UO General Counsel Randy Geller, now working for the university’s law firm, Harrang, Long, Rudnick and Geller, over his proposal to dissolve the UO Senate. Coltrane’s apparent over-reliance on advice from lawyers, as opposed to common sense and decency, has sure compounded the embarrassment though.

The RG Editors then go on to suggest

“An early item on the agenda of incoming UO President Michael Schill should be a review of Fox’s firing.”

That’s a great idea. And it’s hard to imagine anyone better qualified than the dean of a top law school like the University of Chicago to review and take charge of the UO’s problematic General Counsel’s office and its hired attorneys.

The editorial is accompanied by an Op-Ed supporting Fox, from the noted science fiction writer Ursula Le Guin, who has given her papers to UO:

… As an outsider to events on campus, I don’t pretend to have any inside knowledge, but that a breach of confidence of sorts did occur under the auspices of a professor and a graduate student is evidently the case, perfectly visible to the public. That Fox should bear some responsibility as the student’s superior is arguable. But that he should be treated as solely responsible, that he should be dismissed, is an egregious error in judgment and in justice.

It can only be seen as such, and so I hope very much that there is time still to correct it. The damage spoken of in the faculty letter — the damage to staff and faculty trust in the university administration, the damage to the trust of donors like myself, the damage done to public respect for the university — will otherwise be very serious and very long lasting. I will not speak of the damage done to the reputation and well-being of my friend James Fox, but neither will I forget it until it is repaired as soon and as thoroughly as possible.

I only recently learned that Le Guin is the daughter of UC-Berkeley anthropologist Alfred L. Kroeber and writer Theodora Kroeber. Her father brought Ishi, the “last wild Indian in North America” into their home, and her mother wrote his biography, Ishi: in Two Worlds. When I worked in the Wyoming oilfields back in the 80’s, someone had a copy of that book, and it got passed around the crew – ripped in half so two people could read it at once – until it had been completely consumed and endlessly debated around the campfire. This was a group of guys of whom maybe half had finished high school.

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13 Responses to “No harm other than embarrassment to a few administrators has occurred as a result of the release.”

  1. just different says:

    It would truly take cojones grandes for Schill to reinstate Fox and fix this mess. This was a very minor event that the administration senselessly magnified to outrageous proportions. If Schill takes this on, it will have enormous symbolism in demonstrating that he intends to take charge, stay calm, and not fall in line with dysfunctional UO politics.

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  2. New Year Cat says:

    What stands out is that former Dean Carver and Kira Homo would not have at least copied Prof. Fox, out of courtesy or an FYI, on the email setting up the former “policy”, as he alleges they did not. Did they maybe think he would object to it? And it obviously was a policy, however flawed, and not simply a data breach…a data breach is when you sneak around, hack in, steal something. I have yet to read that anyone in this mess wasn’t following a policy, bad as it might have been…except perhaps Dean Lim? There has to be even more to this mess that we haven’t heard about yet. Ugh.

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  3. Outsider says:

    The petty, punitive approach by the Coltrane administration exposes their utter failure to question the general counsel and the Geller connection. Instead, Coltrane and crew fell right into the petty personal vendetta of Park/Geller//HLGR toward Professor Harbaugh and his blog.

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  4. No Harm? says:

    No foul? Here is what we know.

    “I don’t believe confidential attorney-client privilege applies for archives. . . . And even if it does, the president could and should waive it.” Professor Harbaugh 1/28/15

    Responding to a nervous request from Harbaugh, Coltrane agreed to waive attorney-client privilege that might have made the 55-year-old professor liable for releasing privileged information in a UO lawyer’s 2012 memo advocating dissolution of the Faculty Senate. Oregonian, 1/29/15

    “I don’t know what you’ve been told about how I got the digital Presidential Archives, but there was nothing nefarious about it.” Professor Harbaugh 3/18/15

    “Obviously I’m not happy about the fact that two people have lost their jobs over it.” Professor Harbaugh 3/25/15

    “As I’ve also explained, I was given the digital Presidential Archives only after agreeing to keep confidential documents confidential.” Professor Harbaugh 3/30/15

    “So, what is this controversy all about? I only posted two documents.” Professor Harbaugh 3/18/15

    Nefarious? Agreed, not wicked or criminal, so not nefarious. Controversy? There is a disagreement and it will be prolonged, public, and heated. The interest in civil liability is not excessive, breach of contract as proximate cause of wrongful termination, and subsequent reputational injury. Sounds like harm to me. If Fox sues, wonder who the defendants will be?

    Regarding the notice of tort claim,

    https://www.youtube.com/watch?v=SqkYnfAhgy0

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    • just different says:

      Still waiting to hear about the “harm” part that allegedly resulted from posting the Geller memo. The “confidential and privileged” part has already been discussed at length, with tl;dr = writing “confidential and privileged on something doesn’t automatically make it confidential and privileged. Just ask Gov. Kate Brown.

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  5. No Harm? says:

    Not sure what you mean. Are you wondering whether the content of the May 17, 2012 Geller memo was “a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.”

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  6. just different says:

    I am not a lawyer, and I am certainly not an expert on attorney-client privilege. However, I do know that public entities are obligated to be as transparent as possible. Blithely invoking “privilege” whenever a public entity would prefer not to disclose information is a serious threat to the public’s right to know. Apparently I am not alone in believing that attorney-client privilege does not and should not work the same way for public entities as it does for private individuals:

    http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1237&context=facpubs

    I see no reason why privilege should trump public interest for a two-plus-year-old memo from someone who (1) is no longer UO General Counsel and (2) was not specifically consulted about the subject matter for the purposes of legal action by UO. In other words, the usual justifications for attorney-client privilege do not apply here.

    There might be a valid legal argument supporting privilege in this case, but it would have to appeal to something besides platitudes about attorney-client privilege or the mere fact that “confidential and privileged” was written across the top of the memo.

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    • uomatters says:

      Thanks, this is a very helpful article.

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    • Federal Litigator says:

      Which cases cited in this 2007 law review best mirror the facts in this memo disclosure case?

      Here, we have a tenured professor, Union officer, who promised to “to keep confidential documents confidential” in order to procure them from a librarian, Union officer. Then, the tenured professor “only posted two documents” that resulted in firings and now asks “So, what is this controversy all about?” Do the facts in any of the cases cited involve documents provided “in furtherance of the rendition of professional legal services” specifically requested about a new state law (SB 242) declaring a University was no longer a state agency and its relation to a newly created Faculty Union?

      Alternatively, can you cite a case that says it was legal for you to post the Randy Geller memo on the web?

      For government attorneys, this article was required reading when published. Have you followed developments in this area?

      The article addressed attorneys serving a branch of government, .e.g. executive, or one of its code agencies, e.g. Department of Justice, Department of Health and Human Services. That being said, the author admits her article “cannot fully explore the nuances of the government attorney’s role, nor will it attempt to delineate the proper scope of the privilege.” She continues “Although government attorneys do advocate forcefully for the positions of the government officers and agencies that they represent, their responsibility to the general public is always in the background and at times affects the manner in which they represent their clients.” Those “times” are in the professional judgment of the attorney, not a muckraking tenured professor attempting to strengthen the bargaining position of a fledgling Faculty Union. Also, in May, 2012, Bob Berdahl was not an officer of any branch of government and under the newly enacted SB 242, University of Oregon was no longer a state agency.

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  7. Andy Stahl says:

    In response to my favorite foil, Federal Litigator, a state attorney general office’s explanation of newly-enacted state law is precisely the type of attorney/client communication not protected by the privilege. In Oregon, the AG readily acknowledges that truism by publishing its opinions interpreting state law so that all can benefit from the AG’s legal acumen.

    In 2012, as Federal Litigator notes, the UO became a “public university” and “was no longer a state agency.” The UO general counsel was no longer a part of the AG’s office and, thus, one could argue that the GC’s interpretation of new state law should no longer be due any deference or respect and be kept hidden from the public. That view is not inconsistent with the UO President’s subsequent, if not contemporaneous (at least internally), disavowal of Geller’s musings on the new law.

    If shame is due UO Matters, it is the shame associated with showing to all that the emperor’s lawyer had no clothes.

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    • Federal Litigator says:

      Stahl draws an unworkable analogy between the Oregon AG and the UO GC. The Oregon AG is an elected constitutional officer with a statutory duty to “give opinion in writing, when requested, upon any question of law in which the State of Oregon or any public subdivision of the state may have an interest, submitted to the Attorney General by the Governor, any officer, agency, department, board or commission of the state or any member of the legislature.” O.R.S. 180.060(2). UO is neither a branch nor agency of government, the GC is not elected and has no equivalent duty, see job description, “The GC advises the university’s senior leadership team, including the president, UO Board of Trustees, Senior Vice President and Provost, Vice President for Finance and Administration/CFO, and others, on the legal implications of strategy, business, and policy decisions.” The Geller memo describes legal implications of SB 242 in relation to the new Faculty Union, in response to a request from then President Berdahl.

      Privileged communications exist because society values the privacy or purpose of certain relationships, e.g. psychotherapist-patient and attorney-client. Many posts/comments highlight concerns about confidentiality and privilege as related to the counseling records. Stahl noted the “bedrock principle of confidentiality for medical files.” Yet few blog comments express concern with the breach of confidentiality and violation of the attorney-client privilege that occurred when UO Archivists released presidential material to the owner of this private blog. Why the inconsistency?

      Shame is a negative, painful, social emotion that can be seen as resulting from comparison of action with standards and values. UOM is just different – a Union propaganda tool incapable of this experience because it eschews societal values and has no standards for conduct except to strengthen the Union.

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      • union shmunion says:

        You keep trying to depict UOM as some union tool using whatever blog post of the moment as a launching point for your personal, anti-union sentiments. Frankly, it’s boring.

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  8. One more useful piece of information about Ursula Le Guin. In addition to being the daughter of Alfred and Theodora Kroeber, her husband, Charles Le Guin, is a retired History Professor at PSU. He was on the faculty for close to 40 years before she retired. If anyone should know the proper behavior for an academic, she should.

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