Tag Archives: Defamation

More from Paula Barran’s lawyer Peter Jarvis

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Well, she switched from using “bodily fluids” to “biological samples” in her legal arguments to the 9th Circuit Court of Appeals after I pointed out that that the former might be a bit too Dr. Strangelove. So my post was not just parody, it was constructive parody – the best and, I hope, the most legally protected kind of parody.

In any case here’s the latest letter from the lawyer who’s the lawyer for the lawyer who’s working for UO’s lawyers who work for UO President Schill, a lawyer. He wants to talk to my lawyer:

Updated with Barran’s response: UO’s lawyer Paula Barran significantly exaggerated Freyd comparator’s grant to Judge McShane

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Update, 11/4/2019:

Dear Readers –

Last week (Halloween to be precise) I received a letter from Attorney Peter Jarvis of the HK law firm. At his request I’ve added the full text to this post (at the bottom) and the pdf is here. He is representing Attorney Paula Barran, who was hired by UO GC Kevin Reed and AGC Doug Park to represent the UO administration against attorney Jennifer Middleton, who is representing Prof. Jennifer Freyd in her gender discrimination lawsuit. So he’s a lawyer for a lawyer who’s a lawyer for other lawyers, at a university whose president is a lawyer.

Frightening. However, I have to say that this is the most polite take-down request I’ve ever received. There’s none of the “govern yourself accordingly” bluster I get from UO GCO Kevin Reed, or the late-night defamation lawsuit threats that I used to get from his predecessors Doug Park and Randy Geller, not to mention Dave Frohnmayer and his lawyer Bill Gary.

Quoting from Mr. Jarvis:

UO Matters self-identifies as a registered institutionalized news media organization. As such, and based upon that public representation, it should hold itself to the journalistic standards expected from other media organizations. Ethical journalism requires authors to take responsibility for the accuracy of the work and ensure that they are not misrepresenting or oversimplifying the story or permitting their personal values to shape their reporting.

… I therefore respectfully request that the Article be retracted and removed from the UO Matters site.

If, however, you decline to do so, a copy of this letter should be posted to the site so that your readers can form their own opinions based on a fuller recitation of the facts and so that UO Matters can more closely comply with the ethical responsibilities expected of a news media organization.

An appeal to ethics is an unusual argument for a lawyer to make – particularly to an economist – but maybe he’s a fan of Adam’s Smith’s other book. In any case tit-for-tat is often the best strategy, so I’m adding the full text of his letter to the bottom of this post.

Additionally, although he did not request this, I am changing the title of the post from the original “UO’s lawyer Paula Barran lied to Judge McShane about Freyd comparator’s grant” to “UO’s lawyer Paula Barran significantly exaggerated Freyd comparator’s grant to Judge McShane” in recognition of the arguments he makes in this letter, which I encourage you to read.

Unfortunately, he then goes on to threaten me with a DMCA takedown notice if I don’t also remove the screenshot of his client below:

The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.

Seriously? Back in April I sat through two hours of Ms Barran’s legal arguments in front of Judge McShane, and she is ripe for parody. As is anyone who brings up “bodily fluids” more times than Stanley Kubrick. I’m thinking my brief clip from her lengthy profile is allowed under the parody “fair use” provision in copyright law, and of course news-worthiness, as Mr. Jarvis seems to acknowledge this post is.

Of course DMCA takedown orders are frequently abused, and Mr. Jarvis is an attorney with a deep-pocket client, so don’t be surprised if my ISP takes down this post or even this blog for a while – which would be sad, given Ms Barran’s claimed interest in allowing people to form their own opinions.

Original post, 10/17/2019:

UO GC Kevin Reed and his associate GC Doug Park hired “top point getter” Paula Barran to defend the UO administration against Professor Jennifer Freyd’s gender discrimination lawsuit:

Apparently they know better than to dirty their own hands.

As shown in the court transcript below, Barran claimed that one of the comparator faculty Freyd identified was better than Freyd because “he just secured – while this case was pending – a $3 million grant from the Gates Foundation for his work.”

That wasn’t true. The Gates Foundation is admirably transparent:

The truth, corroborated by an email from Prof. Allen, is this:

He was a co-investigator on a grant from the Gates Foundation, but the grant was obtained by colleagues at Berkeley. He had a small subcontract. He also noted that the grant had very little to do with the digital sensing work.

I don’t know what the long-run consequences are for a lawyer who lies to a judge, but it seems from Judge McShane’s opinion dismissing Freyd’s lawsuit that it worked for the UO administration in the short-run:

McShane’s full opinion is here, the full docket is here, and I’ll post Kevin Reed’s retraction of Paula Barran’s $3M claim as soon as I get a copy.

10/17/2019: UO lawyers use helium-cooled MRI brain scanner against Prof Freyd

Freyd is appealing Judge McShane’s dismissal of her gender discrimination lawsuit against UO, with support from Equal Rights Advocates, the AAUP, the AAUW, etc, as explained here. Meanwhile the full transcript from the oral arguments in front of McShane have now been posted here. Some excerpts:

Yes, super-cooled super-conducting 3 Tesla magnets, bodily fluids, and grants can be tools to do good research. But it’s surprising to see a university pay a lawyer to use them to denigrate other research methods. And I wonder how the Gates Foundation feels about being weaponized for use against faculty they don’t fund.

This was almost as funny and not as sad:

Actually it was Judge McShane who said this, not the clerk. And I’m sure he was glaring at Schill when he said it. Or at me.

More 11/4/2019 update, full letter text, pdf here:

October 31, 2019

Via E-mail (harbaugh@uoregon.edu)

Bill Harbaugh
UO Matters
c/o University of Oregon, Department of Economics
1285 University of Oregon
Eugene, OR 97403

Re: UO Matters Article Dear Professor Harbaugh:

I represent Paula A. Barran and Barran Liebman LLP, and I am writing in response to the article published on UO Matters on October 17, 2019 titled “UO’s lawyer Paula Barran lied to Judge McShane about Freyd comparator’s grant” (the “Article”). The opinions expressed in the Article about the accuracy of Ms. Barran’s statement to the court are both incorrect and inflammatory. In fact, Ms. Barran’s statements were supported by and based upon the sworn declaration previously submitted to the court by Dr. Nicholas Allen. Calling Ms. Barran’s integrity into question in this manner and in light of the sworn witness declaration simply because you do not agree with the court’s ultimate conclusion does not advance the meaningful thought and discussion that the UO Matters site purports to promote.

UO Matters self-identifies as a registered institutionalized news media organization. As such, and based upon that public representation, it should hold itself to the journalistic standards expected from other media organizations. Ethical journalism requires authors to take responsibility for the accuracy of the work and ensure that they are not misrepresenting or oversimplifying the story or permitting their personal values to shape their reporting. Soc’y of Prof’l Journalists, SPJ Code of Ethics (rev. Sept. 6, 2014), https://www.spj.org/ethicscode.asp.

Ethical journalism further requires an author to continue to monitor their story and correct any inaccuracies that may emerge. Id. As discussed further below, the opinions expressed in the Article are inaccurate and must be corrected. I therefore respectfully request that the Article be retracted and removed from the UO Matters site.

If, however, you decline to do so, a copy of this letter should be posted to the site so that your readers can form their own opinions based on a fuller recitation of the facts and so that UO Matters can more closely comply with the ethical responsibilities expected of a news media organization.

I. The Facts

Ms. Barran and her firm Barran Liebman LLP were retained to defend the University of Oregon and Dean Hal Sadofsky against a lawsuit brought by Dr. Jennifer Freyd. Dr. Freyd’s lawsuit alleged several theories of gender discrimination based upon the fact that she received less total compensation than some of her male colleagues. In order to succeed on her claims, Dr. Freyd was required to show that she and her comparators do the same or substantially equal work and that she is comparing “like to like.” Dr. Freyd selected four (4) of her more highly-compensated, male colleagues as comparators, including Dr. Nicholas Allen. Dr. Freyd also called into question whether there were similarities or dissimilarities between her work and the work of her comparators—this legal comparison was not initiated by either the university or her colleagues.

Both the university’s and Dr. Freyd’s attorneys thoroughly briefed the legal issues and provided information to the court about Dr. Freyd’s job duties as compared to the comparators’. The parties provided information to the court about the comparators’ additional responsibilities, such as being a department head, director of a center, or director or member of a university-wide committee, employee supervision, and grant revenue and administration, as well as the effect of retention offers.

Dr. Allen submitted a declaration to the court on November 16, 2018, in which he stated:

Dr. Jennifer Freyd is a valued colleague, and I strongly support the University adopting policies and procedures that support and enhance gender equity in all areas of academic life. I am not in a position to have an informed view on my colleague’s specific litigation, but I understand that it may be beneficial to the court to have information about the nature, extent and scope of my day to day duties, responsibilities and accountabilities.

Decl. of Nicholas B. Allen in Support of Def.’s Univ. of Oregon and Sadofsky’s Mot. for Summ. J., Freyd v. Univ. of Oregon, No. 6:17-cv-00448-MC, Dkt. No. 59, at ¶ 2 (D. Or. Nov. 16, 2018). The declaration then described Dr. Allen’s grant work in the following way:

In terms of the specific research grants I hold, I have obtained or participated in obtaining funding for a 2018-22 research project on Mobile Assessment for the Prediction of Suicide, a grant in excess of $3 million from the National Institute of Child Health and Development for a study of Depressed Mothers’ Parenting (which began in 2015 and will run to 2020), a $2.7 million grant from the National Institute of Mental Health, on which I spoke as Co-Investigator with my University colleague, Jennifer Pfeifer, doing work on a longitudinal neuroimaging study related to early adolescent mental health. The grant from the Bill and Melinda Gates Foundation, on which I am Co-Investigator, is an award of $3.5 million to develop and test a learning investigation with a goal of promoting positive gender norm transformative social emotional learning in early adolescents. I have successfully completed a number of grant-funded projects and have developed the skills and experience to work successfully on large funded research projects.

Id. at ¶ 6 (emphasis added). In a subsequent filing made on behalf of Dr. Freyd, Dr. Allen confirmed to the court that “all the information in that declaration was factual.” Decl. of Nicholas B. Allen in Support of Pl.’s Mot. for Relief from J., Freyd v. Univ. of Oregon, No. 6:17-cv-00448- MC, Dkt. No. 59, at ¶ 2 (D. Or. Sept. 10, 2019).

The court heard oral argument on the Defendants’ Motion for Summary Judgment on April 12, 2019. During oral argument, Ms. Barran reiterated the importance of grants in funding both faculty compensation and research space and equipment. She also recognized that Dr. Freyd “is a good researcher, but her work is different” than some of the work being done by the comparators, including their meeting the requirements imposed by government funding sources. Ms. Barran then highlighted that Dr. Allen had received significant funding for his work, including “a $3 million grant from the Gates Foundation.” This statement was supported by and based on the information that had been provided to her by Dr. Allen and that Dr. Allen had sworn to in his declaration to the court.

The court ruled in favor of the university because the various laws under which Dr. Freyd based her claims require her to show that her day-to-day responsibilities are the same or substantially equal to those of the comparators that she identified. Freyd v. Univ. of Oregon, No. 6:17-cv-00448- MC, Dkt. No. 93, at pp. 10–11 (D. Or. May 2, 2019). The additional responsibilities associated with grant applications, receipt, and management were among several factors considered by the court, and the court’s comparisons between Dr. Freyd on one hand and the comparators (including Dr. Allen) on the other, relied upon the information in the sworn declarations that had been submitted into the court’s record. Id.

Dr. Allen later sent a letter in support of Dr. Freyd’s appeal stating that he personally believes that a different methodology should be used to determine faculty compensation. Decl. of Nicholas Allen, Ex. 1, Freyd v. Univ. of Oregon, No. 6:17-cv-00448-MC, Dkt. No. 109-1 (D. Or. Oct. 25, 2019). The letter was also submitted to the district court in support of a motion filed by Dr. Freyd’s attorneys for relief from judgment. Id. The district court considered Dr. Allen’s letter, noted that Dr. Allen reaffirmed the factual accuracy of his original declaration, determined that receiving the letter earlier would not have changed the disposition of the case, and affirmed its grant of summary judgment in favor of the defendants. Opinion and Order, Freyd v. Univ. of Oregon, No. 6:17-cv- 00448-MC, Dkt. No. 114 (D. Or. Oct. 25, 2019).

II. Copyright Infringement

The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.

If you have any questions, concerns, or would like to discuss my demands and requests further, please contact me at Peter.Jarvis@hklaw.com or (503) 243-5877.

Sincerely yours,

HOLLAND & KNIGHT LLP

Peter R. Jarvis

PRJ:kfk

cc: Clients (via email)

Peter R. Jarvis

+1 503-243-5877 Peter.Jarvis@hklaw.com

111 S.W. Fifth Avenue, 2300 U.S. Bancorp Tower | Portland, OR 97204 | T 503.243.2300 | F 503.241.8014 Holland & Knight LLP | www.hklaw.com

IAAF’s Seb Coe throws new chief of staff Nick Davies under the bus

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12/22/2015 update: I guess this means the defamation lawsuit is off:

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12/21/2015: Gormless “Lord Coe” threatens reporter with defamation lawsuit

No, it’s not about Diane Dietz:

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This is apparently not Bird and Bird’s first attempt to shut up Seppelt – the last try was a miserable failure too. No telling why Coe didn’t hire noted defamation lawyer William F. Gary:

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This case is starting to get interesting. The BBC has the scoop on what Coe is trying to hide, here:

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CNN reports on UO retaliation, will air Hunting Ground despite libel threat

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Back in the day, Dave Frohnmayer could make sure that even the local press wouldn’t cover stories about UO’s retaliation against its employees. For example, Joe Wade’s discrimination and retaliation lawsuit, which forced Frohnmayer and John Moseley to pay $500K and create what is now UO’s VP for Equity and Inclusion. I think that got one brief mention in the ODE.

Those bad days are gone. The RG and Oregonian cover everything. UO’s (alleged) retaliation against Archivist James Fox also made the national higher-ed press, as did the UOPD’s retaliation against James Cleavenger. And now CNN has a thorough report on the retaliation lawsuit brought by the UO whistleblowers who went public in the RG about Doug Park’s seizure of Jane Doe’s counseling records, here. A snippet:

Jennifer Morlok landed her dream job on the very campus where she earned two degrees. She was both a proud alumnae of the University of Oregon and a senior staff therapist and case manager at the university counseling center.

But when the school became embroiled in a scandal involving sexual assault allegations against three basketball players, Morlok found herself caught between a student client and the university she loved and served.

It was not easy, but her choice was clear.

She stood up for Jane Doe. …

And CNN will air “The Hunting Ground” today, Sunday, November 22, at 8 p.m. ET. CNN calls it “The groundbreaking documentary about sexual assault on American college campuses”.  The lawyer for Jameis Winston calls it libel. The NYT reports CNN is broadcasting it anyway:

The documentary, “The Hunting Ground,” features an interview with Erica Kinsman, who accused Mr. Winston of sexually assaulting her when he was a quarterback at Florida State University. The movie, directed by Kirby Dick and produced by Amy Ziering, had its premiere at Sundance in January.

The movie received some positive reviews but was the subject of withering criticism last week from professors at Harvard Law School who argued the movie’s treatment of a rape case at Harvard was deeply flawed.

An attorney for Mr. Winston urged CNN not to run the documentary, saying that the movie “falsely and maliciously” attacks his client, according to The Hollywood Reporter, and threatened to sue CNN if it showed the film. Mr. Winston’s case was investigated by the Tallahassee police and Florida State, and he was not charged.

Sounds like Mr. Winston should have hired HLGR attorney William F. Gary, who has years of experience sending out threatening defamation take-down letters.

Administration bargaining team accuses Harbaugh of anti-university blogging

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Sorry, this is old news. Back in 2013 the UO administration’s bargaining team posted the “open letter” below about me, on their fact-check blog about union bargaining. Given that Dave Hubin’s Public Record’s Office made me pay $215 for the heavily redacted emails about this, I thought I should post them eventually. Turns out the statute of limitations on defamation in Oregon is just one year though. Bummer.

From what I can tell from the emails, the letter below came from UO General Counsel Randy Geller, Associate GC Doug Park, Faculty Athletics Representative Tim Gleason, VPAA Barbara Altmann, VPAA Doug Blandy, Consultant Marla Rae, HLGR’s Sharon Rudnick, William F. Gary and Kate Grado, and Michelle Cole of Gallatin Public Affairs – or at least they were in the loop.

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My response:

From: Bill Harbaugh <harbaugh@uoregon.edu>
Subject: your Feb 28 open letter about Professor Bill Harbaugh
Date: April 12, 2013 at 6:22:40 PM PDT
To: Sharon Rudnick <Sharon.RUDNICK@harrang.com>, Randy Geller <rgeller@uoregon.edu>
Cc: James Bean <jcbean@uoregon.edu>, doug park <dougpark@uoregon.edu>, Barbara Altmann <baltmann@uoregon.edu>, Timothy Gleason <tgleason@uoregon.edu>, Doug Blandy <dblandy@uoregon.edu>, kate.grado@harrang.com, William F GARY <William.F.Gary@harrang.com>, jens.schmidt@harrang.com, jeffery.j.matthews@harrang.com, ben.miller@harrang.com, dave.frohnmayer@harrang.com, arden.j.olson@harrang.com, joshua.stump@harrang.com, aaron.landau@harrang.com, Bruce Blonigen <bruceb@uoregon.edu>, “coltrane@uoregon.edu Coltrane” <coltrane@uoregon.edu>, President Gottfredson <pres@uoregon.edu>, “Melody_Rose@ous.edu” <Melody_Rose@ous.edu>, Ryan Hagemann <ryan_hagemann@ous.edu>, Robert Kyr <rkyr@uoregon.edu>, Margaret Paris <mparis@uoregon.edu>

Dear Ms Rudnick and Mr. Geller:

I’m writing you in regard to the Feb 28 “Open letter from the UO Bargaining Team” which is attached, and which is posted on the official University of Oregon website for faculty contract negotiations, at http://uo-ua.uoregon.edu/fact-check/

A colleague came across this website a week or so after the letter had apparently been posted, and alerted me to it. I thought it was pretty hilarious, particularly in its discussion of the UO Matters blog at http://www.uomatters.com, which I edit, and in regard to the claims that I am “indelibly associated” with the faculty union.

In truth I fought long and hard against faculty unionization. I signed the membership card only at the end, because I wanted to be on the winning side, where I could make a difference. I have made it very clear on my blog and in conversations with many UO administrators that I am still quite skeptical of faculty unions and that my ultimate loyalty is to the University of Oregon and to the principle of public education for which it stands. I regularly tell the union organizers I will turn on the union the moment it starts doing more harm than good to this principle, and I’m pretty sure they believe me.

But I digress. Many UO faculty have now told me that I should be outraged by your letter, that it is harmful to my professional reputation, and even that it constitutes “defamation per se”, whatever that means.

While I’m no lawyer, on closer reading I think they may have a point. The letter is on UO letterhead, is posted on an official UO website, is addressed to my academic colleagues in my university community, and it even uses my professional title:

“We write this letter to our University community because we believe it is both necessary and appropriate to inform you of … the continued reporting of biased, erroneous and inflammatory reports from the bargaining table by Professor Bill Harbaugh …”

The letter and the website also make some damaging accusations about my actions and intentions, stating them as if they were facts. I note in particular the statement that my blog is “consistently anti-university”, and “He has also filed frivolous and repeated records requests for information directly related to bargaining.” I’m thinking maybe that was supposed to say “not directly related to bargaining” but regardless, I am not the sort of person who takes accusations of frivolity lightly, even confused ones. Economics is a serious subject, and no potential employer would want to hire a professor with a reputation for joking around.

However the strangest part of this open letter is that a group of UO administrators and attorneys would write something like this, put it on official UO letterhead, post it on an official UO website, and then not sign their names to it.

So, I am writing to ask Ms Rudnick, who is apparently the leader of this team, or perhaps more appropriately Mr. Geller, her immediate supervisor at UO, to send me the names of the people on the “UO Bargaining Team”.

I’m ccing all the people I’ve been able to identify as potential members of the UO Bargaining Team, from the website, the HLGR invoices, and a few other sources. I’ve also cced my department chair, CAS Dean Coltrane, President Gottfredson, OUS Chancellor Rose, OUS General Counsel Ryan Hagemann, current UO Senate President Kyr and incoming Senate President Paris.

I’d appreciate a prompt response, listing the names of the people on the UO Bargaining Team. If any of the team members want to disavow the letter, I’d appreciate it this would be posted on the website where the letter appears. Feel free to also post this letter if you’d like, and let me know if you’d like a signed copy on UO economics department letterhead.

Thanks,

Bill Harbaugh
Professor of Economics

No answer, so I made a public records request. UO wanted $215. It took me a few years of skimping on the scotch budget, but eventually I scraped together the money, and after a few months of dithering UO’s Public Records sent me these documents – full dump here:

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ADDITIONAL RETRACTION of claim Coltrane got Rudnick to rewrite Walkup’s report on Archives release.

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4/20/2015:  The original title of this post was Klinger says archivists “resigned”, Coltrane got Rudnick to rewrite Walkup’s report on Archives release, no followup from Coltrane on deleted docs.

As explained below, on 4/3/2015 I retracted my statement that Interim President Coltrane got Sharon Rudnick to rewrite Amanda Walkup’s report on the Archives release, in response to an email from Coltrane. In response to the demands for retraction I have received from Mr. William F. Gary of HLGR, posted below and here, I am also retracting my statement that Ms Rudnick rewrote Ms Walkup’s report. My statement was not factually supported, I retract it, and I regret publishing it.

4/3/2015: The original title of this post was Klinger says archivists “resigned”, Coltrane got Rudnick to rewrite Walkup’s report on Archives release, no followup from Coltrane on deleted docs.

As explained below, I am retracting the claim that Interim President Coltrane got Sharon Rudnick to rewrite Walkup’s report on the Archives release.My statement was not factually supported, I retract it, and I regret publishing it.

On March 26 Bill Gary of the HLGR law firm, which Scott Coltrane has inexplicably left in charge of UO’s legal affairs, demanded that I retract the claim that Interim President Coltrane got Sharon Rudnick to rewrite Walkup’s report on the Archives release. See below for the link to Rudnick’s summary of the report, and the retraction demand and back and forth here. Apparently Gary is OK with this post on a potential conflict of interest between HLGR’s OUS billings and Gary and Rudnick’s work on the release of Randy Geller’s memo on dissolving the Senate.

Today I received the this email from Interim President Coltrane:

Dear Professor Harbaugh,

Thank you for calling my attention to recent posts you have made on your blog in which you have claimed that “Coltrane got Rudnick to rewrite Amanda Walkup’s report on Archives release”. You ask whether Mr. Gary represents me in connection with a comment he posted on your blog. Mr. Gary does not represent me. Nor do I see anything in his comments suggesting that he does. However, now that I have seen the fabrications that you have posted, I am beginning to wonder whether I should ask him to represent me.

Let me be clear: I did not ask Sharon Rudnick to rewrite Amanda Walkup’s report and Sharon Rudnick did not do so. Posting false and defamatory comments of this kind can do great damage, not only to those you defame, but also to the university. I join Mr. Gary in asking that you retract these false statements. This is especially true at this time when we are trying to rebuild trust in shared governance.

Sincerely, Scott Coltrane

ORS 31.120 gives news organizations 2 weeks to retract allegedly false and defamatory statements, before they can be sued for defamation. Given Coltrane’s email, I am retracting the claim that Interim President Coltrane got Sharon Rudnick to rewrite Walkup’s report on the Archives release. Here’s is my email to Coltrane:

Dear Interim President Coltrane

Thank you for clearing this up. I have posted a formal retraction of the claim that you got Ms Rudnick to rewrite the Walkup report, at http://uomatters.com/2015/04/archivists-resign-coltrane-got-sharon-rudnick-to-write-report-on-presidential-archives-release.html

In regards to your efforts to improve trust in shared governance, I agree these have been significant. However, UO’s Public Records Office is still using delays, fees and redactions to prevent the release of public records. 

I don’t think that there is going to much of an increase in trust in the Johnson Hall administration, by the UO Community, reporters, or the state at large, until you address that problem.

Yours,

Bill Harbaugh

3/25/2015: And Library Dean Adriene Lim wants $210 to reveal docs on prior reviews of archives.

Meanwhile, no follow through on promises from Coltrane or Library Dean Lim to the UO Senate that they would look into larger problems with UO’s transparency and refusal to provide public records, or explain what happened to the documents on athletic subsidies and the Knight Arena – and so much more – that are missing from the digital presidential archives.

Under Oregon State’s library privacy policy, it’s Library Dean Lim that would be in trouble, for telling the administration that I had accessed the digital Presidential Archives:

OSU Libraries treat patron information as strictly confidential to the extent permitted by law. It is generally for the use of library staff only; it can, of course, be divulged to the patron. Unless required by law, patron information is not to be given to non-library individuals, including parents, friends, professors, university administrators, police, FBI, university security staff, or the CIA. The university librarian is responsible for compliance with legal obligations and court orders.

3/25/2015: Diane Dietz has more in the RG, here:

UO economics professor Bill Harbaugh got the records from the archives and he returned them in late January at the request of the UO administration. Harbaugh is publisher of the insider uomatters.com blog.

The administration’s role in the departure of the archivists is “despicable,” he said.

“This is all about (administrators) being embarrassed,” he said. “They tried to nail me. They couldn’t because of tenure and academic freedom, and so they went after the people they could nail.”

The archivists were just doing their job when they provided the documents, Harbaugh said.

They required Harbaugh to agree to the library’s standard disclaimer, which warns researchers that archives may contain sensitive or confidential information that may be protected by privacy laws and other regulations. It warns the researcher that releasing private information without consent could have legal ramifications.

“They say ‘Look, there’s boxes and boxes of stuff. We haven’t screened it all. We’ll let you look through it, but you’ve got to agree to this confidentiality deal. I agreed to that,” Harbaugh said. “They behaved very ethically.”

Archivists abide by a professional obligation to balance access to public records with confidentiality, Harbaugh said.

“People don’t go into this kind of work without believing in the importance of access. They’re researchers, they’re historians, they use these kinds of records to do their own scholarly work. They know it’s important that this material be maintained and made accessible. I’m really proud of them. They did their job,” he said.

Here’s my email to Library Dean Adriene Lim on this:

Subject: “The Incident”
From: Bill Harbaugh
Date: March 18, 2015 at 12:18:48 AM EDT
To: Adriene Lim <alim@uoregon.edu>

Dear Dean Lim, Associate Dean Bonamici, and members of the Library Committee –

Thank you for allowing me to attend your meeting today.

At the meeting Andrew Bonamici said that, in the interests of balancing confidentiality and public access, and the impossibility of inspecting every document individually, that the UO archives had policies or procedures for allowing researchers access to files and folders from the archives that had not been fully reviewed for confidentiality. This access was conditional on researchers agreeing not to make confidential documents public. (This is not verbatim, it’s my recollection of the gist of what Andrew said.)

I don’t know what you’ve been told about how I got the digital Presidential Archives, but there was nothing nefarious about it. I sent the special collections reference desk a request for information on how to access the digital archives. I was told that the digital archives might contain confidential documents protected by FERPA or other laws, and that if I agreed not to release those documents, I should send in a usb key and I would get the archives.

[Here’s the disclaimer language: Archival material may contain materials with sensitive or confidential information that is protected under federal and/or state right to privacy laws and other regulations.

Researchers are advised that the disclosure of certain information pertaining to identifiable living individuals represented in this collection without the consent of those individuals may have legal ramifications (e.g. a cause of action for invasion of privacy may arise if facts concerning an individual’s private life are published that would be deemed highly offensive to a reasonable person) for which the University of Oregon assumes no responsibility.]

I agreed to this condition. I sent in the usb key. I got the documents back. I kept the confidential documents confidential, as I had promised.

It strikes me that this is exactly the procedure that Andrew explained today should have been followed by the archives. It was followed.

So, what is this controversy all about? I only posted two documents. No one has made a credible case for either being confidential. One, of course, was very embarrassing to the General Counsel’s office, and, in my opinion, that’s why the UO administration went after me, and the archivists.

Bill Harbaugh
UO Prof of Economics
http://harbaugh.org

I thought the whole point of hiring Amanda Walkup from Hershner Hunter to do the investigation was to provide some sense of independence and credibility. But no, check the metadata on the otherwise anonymous report Tobin Klinger has released to the press. UO also hired Randy Geller’s HLGR law firm, and Sharon Rudnick wrote the final report. [Note, added at 3/26 2:46PM: By “final report” I mean the publicly released version.] Presumably JH didn’t like what Walkup had to say:

Screen Shot 2015-03-25 at 5.46.39 PM

Here’s the text of Rudnick’s report, original word document here, check the document info:

RECORDS RELEASE
Background: University Records
All of the University’s records are subject to various requirements relating to the maintenance and disclosure of those records. They fall into two categories:
1) non-permanent records, which are subject to retention and destruction according to the University’s Records Retention Schedule, and
2) permanent records, which are accessioned and housed in the University Archives.
In each category, records may be further designated as exempt from public disclosure under Oregon’s Public Records Act, or non-exempt and therefore subject to disclosure.
Permanent Records: Permanent records have historical significance and are designated for permanent retention according to the Records Retention Schedule. When records are no longer active (e.g., in regular use by the originating department), stewardship is transferred to the University Archives. Once accessioned by the Archives, records are processed, described in finding aids, and made available in perpetuity for research and other purposes. In most (but not all) cases, permanent archival records are non-exempt, and once processed, are available to researchers without need for further review or redaction.

Non-Permanent Records: Stewardship of non-permanent records is retained by the originating department. Records are retained for various lengths of time as required by the Secretary of State’s Records Retention Schedule. Pursuant to the public records law, non-permanent records are categorized as exempt or non-exempt from public disclosure. For example, “faculty records” are considered exempt from disclosure. Non-permanent records are not accessioned by the University Archives, and the library is not authorized to determine if or when to release these records. The library offers a limited long-term storage program for inactive non-permanent records, but this is a strictly custodial role. Non-permanent records in storage remain accessible only to authorized staff from the originating department, or to the Public Records Office in response to research requests.
Timeline on Records Release Incident
• On November 13, 2014, a faculty member sent an email to the Special Collections and University Archives (SCUA) reference desk asking for a list or catalog showing what sort of information is available in the Library Archives regarding presidential papers, and information about how to go about accessing them.
• Those records had been transferred to the Libraries by the Office of the President, but permanent and non-permanent records had not been separated based on an exception granted to the unit by the Libraries, and the permanent records had not yet been processed and described — a necessary step before documents are made available in response to such a request.
• In response to the email, approximately 25,000 un-processed electronic records relating to past and current UO presidents were provided to the faculty member on a USB drive on December 3, 2014.
• The records included both permanent (i.e. archival) and non-permanent records, including student and faculty records designated confidential by federal law, state law, or both, privileged communications, and documents that are exempt from disclosure under the Public Records law.
• The University learned of the release of the records and its scope in early January, 2015.
• The University contacted the faculty member who received the records in November 2014, and this individual ultimately returned the records on January 28, 2015 for appropriate processing.
• The University sorted the records and organized them according to university policy and procedures— mainly sorting permanent records from non-permanent records.
• With the initial review and organizing of the documents complete, the University is creating a special team to review and redact information that would be protected under state and federal law so the records can be available through the appropriate channels. This process will take an additional 500 hours.
• Once this work is complete, the University will make all appropriate records available to those who have made public records requests for them. Permanent records will be processed by UO Archives and stored in the University’s Archives. Non-permanent records will be retained according to the Secretary of State’s retention schedule.
Conclusion/Findings
• The records were released to the faculty member prior to the customary separation and processing required by UO Libraries, University of Oregon, State of Oregon, and federal policies, procedures, and statutes.
• Records released included information, including student names and addresses, which are protected under state and federal law (FERPA and HIPAA).
• The records were returned, and appropriate review and processing is being expedited by the University to ensure full compliance with rules, code of ethics, and all federal and state laws.

, revised 3/24/15
00679757.v1

Did William F. Gary, Esquire, go rogue with defamation suit threat against professor?

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Screen Shot 2015-04-02 at 10.15.54 PM

Is Mr. Gary actually representing Interim President Coltrane, or has he gone rogue? My post and Mr. Gary’s defamation lawsuit threat here. Potential conflict of interest for Mr. Gary’s representation of UO in this matter here.

So let’s find out if Bill Gary is really representing Scott Coltrane in this threat to sue me, or if he’s gone off the farm:

Subject: Re: retraction demand
From: Bill Harbaugh <wtharbaugh@gmail.com>
Date: April 2, 2015 at 9:33:01 PM PDT
To: Interim President Coltrane <pres@uoregon.edu>

Cc: Gregory Rikhoff <grikhoff@uoregon.edu>, “Amanda M. Walkup” <awalkup@hershnerhunter.com>, “William F. Gary” <william.f.gary@harrang.com>, Sharon Rudnick <Sharon.RUDNICK@harrang.com>

Dear Interim President Coltrane –

Last week I received the blog comment and email below from William F. Gary, an attorney and partner at Harrang, Long, Gary, and Rudnick.

As you can see, Mr. Gary alleges that I have have made false and defamatory statements about you.

I am writing to ask if Mr. Gary is representing you in this matter, and specifically if you have authorized Mr. Gary to speak for you and pursue legal action against me for this blog post.

Yours,

Bill Harbaugh

From the comments:

William F. Gary 03/26/2015 at 12:30 pm
Your statement that the University President “got Rudnick to rewrite Walkup’s report on Archives release” is false and defamatory. Ms. Walkup’s report, which has not been released to the public, is the work product of Hershner Hunter alone. Ms. Rudnick did not edit the report, let alone rewrite it. You have no basis to claim otherwise. The document that you identify as the report is not the Walkup report. It does not purport to be the Walkup report and it has not been represented as such. Your claim that Ms. Rudnick rewrote an investigative report because “JH didn’t like what Walkup had to say” unfairly impugns her integrity and her professional reputation. Please retract and correct your false statement immediately.

My emailed response to Mr. Gary:

Dear Mr. Gary – 

Someone recently posted a comment from a “William F. Gary” on my blog, demanding that I retract a news and opinion post. 

You can find this demand and the post at http://uomatters.com/2015/03/archivists-resign-coltrane-got-sharon-rudnick-to-write-report-on-presidential-archives-release.html#comment-200324. …

If this is indeed from you, I’d appreciate it if you could confirm this with a signed letter following the requirements of ORS 31.120. I believe you’re familiar with that law, but just in case I’m attaching a previous retraction demand from you, which might be useful as a template. I’m currently traveling, but you can send a pdf to this email address.

Yours, Bill Harbaugh,

Editor and Blogger, http://www.uomatters.com, http://www.openuporegon.com

Mr. Gary’s most recent prior retraction demand was in June 2013. In it he and Sharon Rudnick said I was a news media organization,here. (Most recent to UO M, that is. Rumor has it he’s made similar demands to others.) Interestingly, it was about a post I made discussing the ~$1M HLGR in legal fees that Harrang, Long, Gary and Rudnick’s law firm managed to extract from Oregon taxpayers over the precursor to the current Kitzhaber / Cylvia Hayes scandal. Randy Geller, at the time UO’s General Counsel, wrote a strong defense to the court arguing for the fees. Geller, of course, now works for HLGR.

Here’s Mr. Gary’s response to my email above:

Dear Professor Harbaugh,

   Thank you for your response to my post and for allowing it to appear in the comments section of your blog. I posted it in my own name and from my law firm’s e-mail so that you would not have to guess at who was calling you out on your defamatory comments. As a University professor who often speaks passionately about academic freedom and transparency, I am sure you fully understand the destructive nature of this sort of lie. Not only does it damage those whom you defame, it also does lasting damage to the quality of discourse in the University community. I trust therefore that you will take appropriate steps to correct the record.

   While I appreciate your advice concerning the legal requirements of ORS 31.120, I am confident that I have a good grasp on the steps I must follow to hold you accountable if you do not act promptly to undo the harm you have caused.

My response:

Thanks Mr. Gary – 

Actually, people can enter any name and email address they want, the software has no way of checking on either. It’s one of the charms of the internet. Silence Dogood and Ben Franklin would have loved it. Please let me know when I can expect your letter.

Bill Harbaugh

and then:

Dear Mr. Gary – 

I thought you might be interested in the Oregonian news story on the archives report, here: http://www.oregonlive.com/education/index.ssf/2015/03/university_of_oregon_records.html#incart_2box_education_index.ssf

Perhaps you should threaten the Oregonian with a defamation lawsuit too? Their comments are also open.

Bill Harbaugh

3/26/2015 5:00 PM, still no letter from Gary.

UO General Counsel’s office loses another one

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7/29/2014:

Johnson Hall sure is hard on lawyers. In 2010 President Lariviere fired GC Melinda Grier for hiding public records about Mike Bellotti’s contract, then appointed her assistant Randy Geller after what mounted to a failed search for a replacement. (It appears Gottfredson has rehired Grier on the side though). In 2013 Assistant GC Paul Kaufmann left without explanation, half way through his initial one year contract. Earlier this year Randy Geller “retired” in the midst of the scandal over Gottfredson’s handling of the March8-9 basketball rape allegations.

And now the word is that Assistant GC John F. Salmon III left at the end of June, about 6 months after being hired. Again, no explanation.

Given that UO’s Legal Services Policy (if it’s ever signed by Gottfredson) gives these people the responsibility to defend UO and faculty and staff against accusations of misfeasance etc, and help Gottfredson stonewall the release of public records, you’d think that we could at least get a list of the current GC office’s attorneys and their qualifications. Nope. Their website is still “under construction” and has been since that embarrassing “General Counsel Emerita” episode in 2012:

Screen Shot 2014-07-29 at 11.40.58 AM

7/31/2012: Geller defames judge, appoints Grier as UO’s General Counsel Emeritus, attacks Senate Pres and IAC

In response to demands from Senate President Kyr and others including Frank Stahl, Nathan Tublitz and John Bonine, UO General Counsel Randy Geller announced yesterday he’s rescheduling his random drug testing hearing.

But it’s a sham, he’s picked another date when school is out of session. And he completely ignores the faculty / administrative agreement calling for UO policies like this to go through the Senate. That “policy on policies” agreement with Lariviere had been the Senate’s major accomplishment for 2011-2012. Now Geller thinks it isn’t worth a mention.

Geller also claims Senate President Rob Kyr and the IAC Chair made false and offensive comments about the university’s rulemaking process. Apparently that process’s feelings have been hurt, so Randy asks Kyr et al to apologize to it, and to some especially sensitive senior administrators:

Dear Rob and Brian:

I received your email of July 24, 2012, requesting a delay in the public hearing scheduled for August 23rd, 2012. The hearing will be rescheduled for September 13, 2012. Written comments will be accepted until noon on September 14, 2012. We will similarly postpone the date the rule will be filed with the Secretary of State and become final. The rule will be filed on September 21, 2012.

Your allegations about the University’s rulemaking processes are offensive and false , as are the comments made publicly by members of the Intercollegiate Athletics Committee. I ask that you apologize in writing to President Berdahl, Rob Mullens, and me. I also ask that you censure the members of the IAC who have published offensive and defamatory comments.

Randolph Geller

General Counsel
University of Oregon

I like that “in writing” part. Maybe Geller wants Kyr to stand in front of the whole class and use the blackboard, like in third grade? Geller sent this out yesterday. Berdahl’s last few days look to be as crazy as his first. Adult supervision supposedly returns Aug 1, but Gottfredson still hasn’t signed his contract. and Gottfredson apparently signed his contract last night.

8/27/2012 9:00 AM: Geller defames judge:

Sorry, long story. Back in 2010 UO’s General Counsel Melinda Grier got in big trouble for ignoring multiple public records requests and failing to get a written contract for her friend, Athletic Director Mike Bellotti:

It was a big scandal and a humiliation for new UO President Lariviere, especially when he then had to pay Bellotti millions, after firing him for what was reportedly lax financial management of the athletic department.

So Lariviere fired Grier too, and got the Oregon DOJ to look into what had happened. Their investigation took 381+ hours, cost UO $44,086.60, and concluded that Grier (and/or her office, a bit ambiguous) had provided “deficient legal representation” to UO.

Lariviere then tried to hire an outside replacement for Grier, but after 6 months with no luck he gave up and just promoted her associate GC, Randy Geller. (Randy’s letter and resume are here. It was supposed to be a public search, but he wouldn’t release these until I petitioned the AG’s office under the public records law. His bit of intransigence cost UO another ~$1,000 in DOJ billing time.) Grier’s assistant GC Doug Park became the associate. And then eventually of course Lariviere got fired too, to be replaced by Berdahl and now by a permanent President, Mike Gottfredson.

And during the transition to Gottfredson a few weeks ago, Geller sent out a string of odd emails. One accused the UO Senate President and others of defaming him. Another, sent to the Senate STC, with President Gottfredson cced, included this:

The “investigation” of Melinda by DOJ was a hack job. Unfortunately, she was the first of several victims of the former Attorney General. His incompetence eventually led to his decision not to run for a second term and then to resign before the end of his term. If you google “John Kroger” I am sure you will find the Oregonian and Willamette Week articles.

There’s no doubt that Kroger, who has gone on to become president of Reed College, had his issues. But the Grier investigation was led by longtime Associate Attorney General David Leith, now a Marion County Circuit Court Judge. The other investigator was Keith Dubanevich, now Oregon Associate AG. Accusing a sitting judge and an associate AG of a “hack job” is competent professional behavior for UO’s chief lawyer? Maybe Geller’s just mad because the DOJ is fighting his efforts to get them to pay Frohnmayer’s law firm $864,000.

Meanwhile, who was it that broke the story on the Grier firing? Jeff Manning, at the time an investigative reporter for the Oregonian. And now the spokesperson for the AG John Kroger’s replacement, Ellen Rosenblum. And what happened to Melinda Grier? She’s been working as a consultant in an office she shares with a law firm that’s tried to persuade Randy Geller to hire them to do legal work for UO.

And – I’m not making this up – a few days ago Geller declared that she is now UO’s “General Counsel Emeritus” (sic):

Screen shot above, page here. We’ll see how long it stays up.

10:15 AM update: Grier’s now off Randy’s website. That was quick. The html from Friday is here. A commenter notes that this would break UO’s new policy for faculty emeritus status, which Geller and Berdahl signed off on in May. No word on his apology to Judge Leith and AAG Dubanevich yet.

12:15 PM update: Steve Duin of the Oregonian gets Geller to speak. Well worth reading. Must have been a fun party.

4:20 PM update: Geller apologizes to Kroger.

If he’s apologized for his equally unprofessional accusations against UO Senate Pres Kyr and IAC members, I guess I wasn’t on the list. From all indications UO’s new random duck drug testing policy will go forward without UO Senate review.

And this, via UO spokesperson Phil Weiler:

Statement regarding DOJ inquiry/General Counsel website

I have communicated directly with the president of Reed College and former
Oregon Attorney General John Kroger expressing my regret for the ill-advised
email I sent several weeks ago. My comments were unacceptable and I have
apologized to the former Attorney General and his staff.

I also recognize that it was inappropriate to use my office’s website to
recognize the former General Counsel for her years of service.

Randolph Geller
General Counsel

I’ve acquired quite a collection of other “un-lawyerly” messages from Randy over the years.

UO Foundation still laundering cash for Duck Athletic Fund

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5/15/2014 update:

  • 2013 IRS 990 here. It covers the period 7/1/2012 to 6/30/2013.
  • 2012 here.
  • 2011 here.

More on these later.

5/14/2014 update: The UO Foundation has told me that they will release their IRS 990 form tomorrow. This should have been made public no later than November 15, but the foundation requested and received two 3 month extensions from the IRS. Tomorrow is their final deadline. The form will include information on expenses, salaries for their highest paid employees such as Paul Weinhold and Jay Namyet, and some rudimentary information on what the foundation does with the money it manages for UO. Probably not much clarity on how much goes to the Ducks and how much to UO academics, but I’ll post what there is, when I get it.

11/20/2013 update: Two weeks ago I received a “demand for retraction” from Thomas Herrmann, legal counsel to the University of Oregon Foundation, regarding this post which I first published on 10/25/2013. (Page down to read the original post in its entirety.)

Continue reading →

UO Foundation claims defamation and demands retraction from UO Matters

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11/12/13: I recently received the “demand for retraction” below, from Thomas Herrmann, legal counsel to the UO Foundation, presumably writing on instruction from the Foundation’s Chairman Jon Anderson, a former marathon runner with longtime Nike connections, and the Foundation’s 2013 Chair-elect and committed athletics booster Stephen Holwerda. A bio-piece on Mr Holwerda in the Portland Business Tribune notes:

Greatest passions: Oregon pinot noir, sports, antique mechanical banks.
First choice for a new career: I started out in athletic administration, and if I had to pick a second career it would be to go back to working for the University of Oregon’s athletic department. Go Ducks.

[Above updated to note that Anderson is Chair, Holwerda is Chair Elect. Thanks, commenter.]

https://dl.dropboxusercontent.com/u/971644/uomatters/UO_Foundation/UO%20Foundation%20takedown%20201311.pdf

The post he objects to is here: http://uomatters.com/2013/10/uo-foundation-still-laundering-athletic.html

The ORS 31.200-31.225 statute that Mr. Herrmann cites in his take-down demand is titled “Liability of radio or television station personnel for defamation”. 31.205 discusses “Damages recoverable for defamation by radio, television, motion pictures, newspaper or printed periodical”. So I guess I am a professional news organization, at least in the eyes of the UO Foundation. Section 31.215 lays out the following procedure for retraction demands:

(1) The demand for correction or retraction shall be in writing, signed by the defamed person or the attorney of the person and be delivered to the publisher of the defamatory statement, either personally, by registered mail or by certified mail with return receipt at the publishers place of business or residence within 20 days after the defamed person receives actual knowledge of the defamatory statement. The demand shall specify which statements are false and defamatory and request that they be corrected or retracted. The demand may also refer to the sources from which the true facts may be ascertained with accuracy.

(2)The publisher of the defamatory statement shall have not more than two weeks after receipt of the demand for correction or retraction in which to investigate the demand; and, after making such investigation, the publisher shall publish the correction or retraction in:

(a)The first issue thereafter published, in the case of newspapers, magazines or other printed periodicals.

(b)The first broadcast or telecast thereafter made, in the case of radio or television stations.

(c)The first public exhibition thereafter made, in the case of motion picture theaters.

(3)The correction or retraction shall consist of a statement by the publisher substantially to the effect that the defamatory statements previously made are not factually supported and that the publisher regrets the original publication thereof.

(4)The correction or retraction shall be published in substantially as conspicuous a manner as the defamatory statement. [Formerly30.165]

I have received a plethora of advice on how to respond to this threat. Several attorneys have looked at it, and my post, and said that they do not think that my language is an accusation of criminal activity, particularly given the full context of the post. They have suggested I call the Foundation’s bluff and then file an anti-SLAPP countersuit against them, if they proceed with a lawsuit against me.

I was also told that that the language in Mr. Herrmann’s blustery last paragraph would be quite helpful in a counter-suit, given that anti-SLAPP laws such as Oregon’s are specifically designed to make it difficult to use defamation lawsuits to limit public discussion, as his threat seemingly proposes to do.

One reader suggested that I offer to replace the phrase that the Foundation claims to interpret as an accusation of criminal activity, i.e. “money laundering cash for the Duck Athletic Fund”, with something like “lovingly laundering sweaty jockstraps for the Duck athletic department”. Thanks for this proposal, really.

In the end, I decided to follow the precedent established by noted barrister John Cleese. Mr. Herrmann, you may take this video as my response, in full, to your threatening letter:

The DVD  is available from Amazon for $14.98, here.

Meanwhile, back in Chicago:

Chicago State University seems to have some of the same insider dealing issues that have troubled UO. Check out their “Crony State University” blog, written by 8 faculty. Impressive.

They’ve also been served with a takedown notice. News stories in the Chicago Tribune, InsideHigherEd and Chronicle. (Thanks to Margaret Soltan’s ever interesting blog for the link).

Update on admin fact check site

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The University of Oregon administration has been bargaining a union contract with the UO faculty’s AAUP/AFT affiliate local since November. I regularly blog about the bargaining sessions. In February the University of Oregon’s administrative bargaining team wrote an unsigned “Open Letter” to the UO community, saying:

“We write this letter to our University community because we believe it is both necessary and appropriate to inform you of circumstances that are significantly impeding the on-going bargaining between the University and United Academics—the continued reporting of biased, erroneous and inflammatory reports from the bargaining table by Professor Bill Harbaugh on his blog, UO Matters, and Mr. Harbaugh’s insertion of himself into the bargaining process by filing repeated public records requests for information directly related to bargaining. We have raised this concern privately with the UA bargaining team several times, and the response each time is the same: what Mr. Harbaugh reports regarding bargaining is not our responsibility and there’s nothing we will do about it. Given the Union’s unwillingness or inability to address this matter, we have decided to bring it directly to the University community’s attention. …”

The administration’s bargaining team is led by the University’s General Counsel Randy Geller, and includes Senior VP for Academic Affairs Doug Blandy, Journalism Dean Tim Gleason, VPAA Barbara Altmann, and hired attorneys Sharon Rudnick and Kate Grado, from the HLGR law firm.

I thought this letter was more embarrassing to its authors than to me – although a few colleagues thought it was defamatory and professionally damaging. I mostly ignored it except for a letter to university President Mike Gottfredson asking him to disown it, which he did not respond to.

Then the administration rejected the union’s free speech and academic freedom proposals, countering them with restrictions that would give university administrators the ability to discipline faculty for criticism of the administration, which I frequently engage in.

At that point I made a public records request to get information about the authors of the letter and how it came about that Mr. Geller, an attorney, would approve putting such a thing on university letterhead and posting it on an official university website. Or alternatively, if your attorney allows, you may be able to get a letterhead template from somewhere like MyCreativeShop or somewhere similar.

To add to the absurdity, President Gottfredson’s Public Records Office, which is supervised by his Special Assistant Dave Hubin, replied by saying that I would have to pay $225 to see those documents:

The University of Oregon has received your public records request for “any emails, letters, or memos sent to, cced on, or received by UO General Counsel Randy Geller, regarding the 2/28/2013 open letter from the UO administration’s faculty union bargaining team to UO Economics Professor William T. Harbaugh…”, on 08/20/2013, attached. The office has at least some documents responsive to your request. By this email, the office is providing you with an estimate to respond to your requests.

The office estimates the actual cost of responding to your request to be $225.56.

The letter, and my unanswered reply to President Gottfredson are below:

My Response:

From: Bill Harbaugh
Subject: your Feb 28 open letter about Professor Bill Harbaugh
Date: April 12, 2013 6:22:40 PM PDT
To: Sharon Rudnick , Randy Geller
Cc: James Bean , doug park , Barbara Altmann , Timothy Gleason , Doug Blandy , kate.grado@harrang.com, William F GARY , jens.schmidt@harrang.com, jeffery.j.matthews@harrang.com, ben.miller@harrang.com, dave.frohnmayer@harrang.com, arden.j.olson@harrang.com, joshua.stump@harrang.com, aaron.landau@harrang.com, Bruce Blonigen , “coltrane@uoregon.edu Coltrane” , President Gottfredson
, “Melody_Rose@ous.edu” , Ryan Hagemann , Robert Kyr , Margaret Paris

Dear Ms Rudnick and Mr. Geller:

I’m writing you in regard to the Feb 28 “Open letter from the UO Bargaining Team” which is attached, and which is posted on the official University of Oregon website for faculty contract negotiations, at http://uo-ua.uoregon.edu/fact-check/

A colleague came across this website a week or so after the letter had apparently been posted, and alerted me to it. I thought it was pretty hilarious, particularly in its discussion of the UO Matters blog at http://uomatters.com, which I edit, and in regard to the claims that I am “indelibly associated” with the faculty union.

In truth I fought long and hard against faculty unionization. I signed the membership card only at the end, because I wanted to be on the winning side, where I could make a difference. I have made it very clear on my blog and in conversations with many UO administrators that I am still quite skeptical of faculty unions and that my ultimate loyalty is to the University of Oregon and to the principle of public education for which it stands. I regularly tell the union organizers I will turn on the union the moment it starts doing more harm than good to this principle, and I’m pretty sure they believe me.

But I digress. Many UO faculty have now told me that I should be outraged by your letter, that it is harmful to my professional reputation, and even that it constitutes “defamation per se”, whatever that means.

While I’m no lawyer, on closer reading I think they may have a point. The letter is on UO letterhead, is posted on an official UO website, is addressed to my academic colleagues in my university community, and it even uses my professional title:

“We write this letter to our University community because we believe it is both necessary and appropriate to inform you of … the continued reporting of biased, erroneous and inflammatory reports from the bargaining table by Professor Bill Harbaugh …”

The letter and the website also make some damaging accusations about my actions and intentions, stating them as if they were facts. I note in particular the statement that my blog is “consistently anti-university”, and “He has also filed frivolous and repeated records requests for information directly related to bargaining.” I’m thinking maybe that was supposed to say “not directly related to bargaining” but regardless, I am not the sort of person who takes accusations of frivolity lightly, even confused ones. Economics is a serious subject, and no potential employer would want to hire a professor with a reputation for joking around.

However the strangest part of this open letter is that a group of UO administrators and attorneys would write something like this, put it on official UO letterhead, post it on an official UO website, and then not sign their names to it.

So, I am writing to ask Ms Rudnick, who is apparently the leader of this team, or perhaps more appropriately Mr. Geller, her immediate supervisor at UO, to send me the names of the people on the “UO Bargaining Team”.

I’m ccing all the people I’ve been able to identify as potential members of the UO Bargaining Team, from the website, the HLGR invoices, and a few other sources. I’ve also cced my department chair, CAS Dean Coltrane, President Gottfredson, OUS Chancellor Rose, OUS General Counsel Ryan Hagemann, current UO Senate President Kyr and incoming Senate President Paris.

I’d appreciate a prompt response, listing the names of the people on the UO Bargaining Team. If any of the team members want to disavow the letter, I’d appreciate it this would be posted on the website where the letter appears. Feel free to also post this letter if you’d like, and let me know if you’d like a signed copy on UO economics department letterhead.

Thanks,

Bill Harbaugh
Professor of Economics
1285 University of Oregon
Eugene, Oregon 97403

10/20/13 update: The administration’s fact-check website about the faculty union negotiations cost the academic budget about $250,000. It was unceremoniously taken down a week or two ago, and has now been quietly replaced by a new, partially sanitized site at http://uo-cba.uoregon.edu/. The new site keeps some of the old fact-check stuff, such as

Claim: UO Matters blogger Bill Harbaugh is also acting as an economic consultant for United Academics. Tuesday, when the UA bargaining team left the table to caucus, he went with the team. But that doesn’t mean he can get his numbers right.

but it removes the “open letter” from the administration’s bargaining team that accused me of being “consistently anti-university” and “indelibly associated with United Academics”. It also removes all links to that letter. It’s as if Rudnick and Geller never wrote it. (I’ve got an archive of the entire old site, let me know if you want the files.)

Under the resources tab, the administration’s site provides a helpful (if it weren’t broken) link to an Inside Higher Ed story that vaguely supports VPFA Jamie Moffitt’s arguments for increasing UO’s reserves, but I can’t find any mention of the more critical Inside Higher Ed story reporting on President Gottfredson’s efforts to limit academic freedom and freedom of speech. I’m happy to provide both: Budget story here, academic freedom story here, more on that issue and links to other stories here.

President calls for more academic freedom!

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10/14/2013 update: 

That would be President Hassan Rouhani of Iran. The Chronicle has the story.

9/16/2013 update: InsideHigherEd reports on UO Academic Freedom fight

UO’s free speech fight has gone global. Colleen Flaherty at Inside Higher Ed broke the story on Thursday, then CUNY’s Cory Robin posted his take on his blog and on the popular Crooked Timber (tagline: Out of the crooked timber of humanity, no straight thing was ever made). He included a call to faculty worldwide to write President Gottfredson about this nastiness, and from the emails I’ve seen, they certainly have. The pro academic freedom Foundation for Individual Rights in Education blogged about it here, and Betsy Hammond of the Oregonian has a related story here. Info on the administration’s bizarre “open letter” accusing me of being anti-university is here.

9/12/2013 update: I really hope the UO administration and President Gottfredson think this post is sufficiently civil and respectful. I’d just hate to get disciplined for being too blunt in a post about free speech. Their “open letter” post about me is here.


Today, reporter Colleen Flaherty of InsideHigherEd.com has an excellent story on the academic freedom debates occurring between the UO faculty union and the administration, here. (See below for the live-blog of the 4/17/2013 Senate meeting leading up to a unanimous vote in favor of the Academic Freedom Policy, which President Gottfredson then rejected.):

… Oregon’s existing policy [Approved by President Lariviere] calls free inquiry and free speech “the cornerstones of an academic institution committed to the creation and transfer of knowledge.” The belief that an opinion is “pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong’ cannot be grounds for its suppression,” it says. …

Margaret Paris, professor of law and president of the Faculty Senate, has not been involved in union negotiations but said that the union statement likely would set a precedent for the ultimate Senate document, since it would be difficulty to work off two different policies when most of the faculty belong to the union (although law professors do not).

Paris also said she was aware of the university’s preference [I think this should read Randy Geller’s preference] to decouple academic freedom and free speech in the final Faculty Senate statement, and that she would likely support it. Because the document applies to all university employees, it makes sense that academic freedom – which protects faculty but not staff – deserves individual attention, she said.

Oregon’s administration works closely with the Faculty Senate and Paris is looking forward to a collaborative process finalizing the document, she said. 

The new UO policy, unanimously approved by the Senate, which Gottfredson refused to sign, said:

Freedom of Speech 

All University employees retain the right to address any matter of institutional policy or action without fear of institutional discipline or restraint. They also are guaranteed the protections of freedom of speech with regard to any matter, so long as it is clear that they are not acting or speaking on behalf of the University. 

Contractual Force of Policy 

This Policy on Academic Freedom and Freedom of Speech shall be given contractual force by incorporation into pertinent contractual and collective bargaining agreements and individual letters of appointment. It shall be incorporated into the Faculty Handbook and the UO University Policy Library.

Gottfredson rejected this Senate policy back in May or so. Does anyone know if the Senate ad-hoc committee has met to try and work out the changes he asked for? I can’t find anything in the UO policy library, just what Lariviere approved in 2010.)

Bill Harbaugh, professor of economics and moderator of the “UO Matters” blog, which is frequently critical of university policy, said decoupling academic freedom from free speech left room for administrators to punish those faculty – like him – who say things administrators don’t like. He also objected to the idea that administrators would be the ones deciding what qualifies as “civil.” 

The university has previously publicly accused Harbaugh of including “consistently anti-university” statements on his blog. …

Asked about the civility clause, [Dave] Hubin said Oregon has a long history of promoting respectful discourse – one that’s covered by the university’s existing policy on academic freedom and free speech: “It is the responsibility of speakers, listeners and all members of our community to respect others and to promote a culture of mutual inquiry throughout the university community.” Any determination of what’s civil would likely include faculty input, he said.

The reporter apparently couldn’t get an interview with Gottfredson – I don’t think anyone has since January, when ODE student reporter Dash Paulson asked him why he’d cracked down on public records. But she includes a boilerplate email from him about how great freedom is.

 Here is the live-blog of the 4/17/2013 Senate meeting (by a guest blogger) leading up to a unanimous vote in favor of the Academic Freedom proposal that President Gottfredson then rejected:

3.2 Motion (Policy Adoption): Academic Freedom & Freedom of Speech;
Margie Paris (Law), Senate President-Elect & Chair, Academic Freedom
Review Committee

Presumably Mr. Geller will be there to defend his work, which should be interesting. It looks to me like the Senate committee handling this did a bang-up job editing the proposal from our administrative overlords:

Geller had removed “they are entitled to comment on our criticize University policies or decisions” from the original draft, and added a lot of other restrictive language. Because this free speech stuff is dangerous, and we don’t want our students getting any ideas from the faculty.

Let me make one thing perfectly clear: this blog has never criticized University policies or decisions. Just administrative ones. Which makes me a little worried about this job ad:

Plumber
Campus Operations
http://jobs.uoregon.edu/classified.php?id=4575

That’s right, the president’s counsel is hiring “plumbers” to conduct “campus operations”. We know where that leads.

Notes: Seems like Geller chickened out.

Kyr reads the motion.

3:34: Margie Paris gives history of this motion: a committee in 2010 made a “very able and well-written draft” passed by the Senate and submitted to Administration. “A lot happened and it was not approved.” The GC office had “suggestions and changes” it wanted to see in the policy. When Gottfredson arrived, Kyr asked him for permission to take up the three policies—facilities, academic freedom, I forget the 3rd—

The new committee started with the language that the UO Senate had approved. “This version is very close to the original language the Senate had approved.” Small committee of Paris and 3 others accepted some of the GC office’s suggestions, and discarded others. Tightened up the preamble, mentioned the mission statement of the UO.

Margie: “I didn’t realize how impt these statements are, not only in their own right but because accrediting bodies ask to see these statements.”

Adkins: asks to amend the policy to include officers of administration, who are not included in this policy but deserve this freedom as well.

“The University protects academic freedom, and Officers of Instruction, Research, and Administration [“faculty members”] shall enjoy…”

Passes unanimously.

Psaki: again, simple and uncontroversial.

Sinclair: “the freedom to teach”: does this mean anyone can walk into a classroom and teach?

Paris: No. Read the context.

Foster: Curious about the interpretation of “so long as it is clear that they are not acting or speaking on behalf of the university.” The interpretation of that can be quite wide. Nationally people have been identified as a professor, and were penalized for that. How far do you have to go to establish that you are not speaking on behalf of the university, and what does that mean anyway?

Paris: I’ve thought long and hard about this. This is a change suggested by GC. If I write an editorial, I should specify in it that I’m not speaking on behalf of the U. We have certain freedoms due to our role, and we have the responsibility to clarify when we are not speaking for the institution.

Foster: It’s actually very unusual for professors to state this. It’s usually taken for granted. Does this then apply to academic articles? TV appearances? Radio interviews? It’s actually a new requirement, and awkward. I don’t want to be seen as supporting Ward Churchill, but there have been cases where people have been disciplined for speaking their minds and identified as professors—how far does this go?

Merskin: In wrtg we often say “in my 20 years of teaching” etc. we refer to our prof. exper. to back up our point of view.

We weren’t asking for a statement everyone should make, which would restrict freedom of speech.

Kyr: a statement of intent.

Paris: there are many situations and contexts where it is quite clear that one is not speaking for the university. Where there might be ambiguity or confusion, it’s appropriate to add a statement. This would clearly not apply to research publications.

Jin: what does “to fulfill the demands of the scholarly enterprise” mean?

Paris: this is from the original draft; it’s a way of articulating both the freedom and the responsibility it entails.

Jin: What kind of scholarly enterprise? Am I free to deny requests for my syllabus from people who aren’t enrolled?

Paris: the ‘demands’ in question aren’t any demands anyone might make of you; they are the demands that are part of your job.

Motion passes unanimously. Yippee!
9/9/2013 update: As discussed below, The UC system recently worked in cooperation with its faculty to develop a strong statement on academic freedom and freedom of speech. I got curious about what position if any President Gottfredson took in that process, so I made a public records request last night to UC-Irvine for his related emails:

This is a public records request for any emails, memos, or other documents sent to or received by former UC-Irvine Provost Michael Gottfredson, dealing with the UC system’s new policy on academic freedom, which is described in this IHE news story: http://www.insidehighered.com/news/2013/07/29/u-california-board-regents-adopts-new-measure-academic-freedom 

This request covers the period 1/1/2008 to the termination of Provost Gottfredson UC employment, or the closing of his UC email accounts, if that was later.

10:30 this morning, I get this response from the UC-Irvine public records office:

With regard to the time needed to process your request, please note that we are not the office of record for these requests and we cannot tell you how long the search will take at this time.  We will let you know what the results of our search are as soon as possible.

With respect to fees, please note that our office typically waives the cost and no fees are expected for your request. 

We will process your request today.  You should see an official acknowledgement email from us shortly.

Meanwhile, here at UO, Dave Hubin’s public records office is still trying to charge me $225 to tell me who which UO anonymous administrators wrote that “Open Letter to the UO Community“

 9/8/2013: Gottfredson to gut Senate’s Academic Freedom Policy:

 The current UO policy on Academic Freedom is here:

… Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community. Further, as a public institution, the University will sustain a higher and more open standard for freedom of inquiry and free speech than may be expected or preferred in private settings. 

Free inquiry and free speech are the cornerstones of an academic institution committed to the creation and transfer of knowledge. Expression of diverse points of view is of the highest importance, not solely for those who present and defend some view but for those who would hear, disagree, and pass judgment on those views. The belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or “just plain wrong” cannot be grounds for its suppression….

The Senate’s April 2013 revision is here. President Gottfredson has still not signed it. A well-informed correspondent passes along this:

Minutes of May 22, 2013 Senate Meeting” “3.9 Academic Freedom & Freedom of Speech Policy (Kyr) 

Senate President Kyr informed the Senate that President Gottfredson preferred that the Senate divide this policy into two different policies; one addressing academic freedom and the other addressing freedom of speech. Senate President Kyr had agreed to these terms and mentioned that this would be a change in formatting, not content. This policy would be carried into Senate VP Paris’ (Law) administration in case further discussion was needed.”

Note that Kyr was not acting properly when he made this agreement. Only the Senate had that authority. They will exercise it as they see fit in the coming year.

The faculty union’s Academic Freedom Article was basically the same as the Senate proposal. Instead of accepting it, Gottfredson’s bargaining team has put up a counter-proposal that limits some rather basic freedoms that faculty assume we have.

In particular, the proposal from President Gottfredson’s bargaining team includes none of the forceful pro free-speech language from current UO policy. It also strikes out the Senate’s language guaranteeing faculty the right to engage in criticism of university policies and actions, replacing it with language that seems to limit this right to situations where the faculty are working through committees or other university approved forums.

In addition, his proposal requires that faculty treat colleagues “fairly and civilly”, and that participation in shared governance be “civil and effective”. Sounds great, but who gets to define these words? I’m guessing it’s rare that a faculty meeting, not to mention a seminar, can go on for more than an hour without at least one person crossing the line. The administration wants us to resolve these sorts of arguments with grievances and arbitration? 

In the bargaining session discussion the administration’s team made it pretty clear they don’t think this blog can pass those rather vague tests. This is presumably the reason they are trying to add them to the contract, since their efforts under existing UO policy and Oregon law to shut me down have failed – including a threatened defamation lawsuit from Gottfredson’s lead negotiator Sharon Rudnick, and a bizarre “open letter to the UO community” about me posted on the official UO webpages, from GC Randy Geller, VPAA Doug Blandy, Dean Tim Gleason, attorney Sharon Rudnick, and VPAA and Oregon Humanities Center Director Barbara Altmann.
Here is the Senate proposal, with the more egregious changes President Gottfredson is trying to impose marked like this for deletions, and in bold for insertions. A pdf of the latest admin proposal to the union, showing more differences, is here.

Academic Freedom 

The University protects academic freedom, and Officers of Instruction, Research, and Administration [“faculty members”] shall enjoy all of its benefits and responsibilities. These are defined as: 

  • the freedom to conduct research and creative work and to publish or otherwise disseminate the results of that work. Within the broad standards of accountability established by their profession and their individual disciplines, faculty members must enjoy the fullest possible freedom in their research and in circulating and publishing their results. This freedom follows immediately from the university’s basic commitment to advancing knowledge and understanding. 
  • the freedom to teach, both in and outside of the classroom. Faculty members must be able not only to disseminate the results of research, but also to train students to think about these results for themselves, often in an atmosphere of controversy that, so long as it remains in a broad sense educationally relevant, actively assists students in mastering the subject and appreciating its significance. 
  • the freedom to engage in internal criticism, which encompasses the freedom to address any matter of institutional policy or action whether or not as a member of any agency of institutional governance. Universities promote the common good through broad-based engagement in the scholarly endeavor. Faculty members, because of their education and their institutional knowledge, play an indispensable role as independent participants in university decision-making. By virtue of this role, they are entitled to comment on or criticize University policies or decisions, either individually or through institutions of faculty governance.

Faculty responsibilities:

All University employees retain the right to address any matter of institutional policy or action without fear of institutional discipline or restraint. They also are guaranteed the protections of freedom of speech with regard to any matter, so long as it is clear that they are not acting or speaking on behalf of the University. 

Academic responsibility implies the competent and full performance of duties and obligations and the commitment to support the responsible exercise of academic freedom by one’s self and others. Each bargaining unit faculty member has the responsibility to 

a. Observe and uphold the ethical standards of his or her discipline in the pursuit and communication of scientific and scholarly knowledge; 

b. Treat students, staff, colleagues, and the public fairly and civilly in discharging his or her duties and in accordance with this Agreement. 

c. Respect the integrity of the evaluation process, evaluating students, staff, and colleagues fairly according to the criteria and procedures specified in the evaluation process; 

d. Represent one’s self as speaking for the university only when expressly authorized to do so as part of one’s position or professional responsibilities; 

e. Participate, as appropriate, in the system of shared academic governance, especially at the department or unit level, and seek to contribute to the civil and effective academic functioning of the bargaining unit faculty member’s academic unit (program, department, school or college) and the university.

A helpful commenter notes:

Why not remind the president of what the UC Board — his former employer — just did to strengthen and confirm academic freedom? In July the UC Board newly upheld the “freedom to address any matter of institutional policy or action when acting as a member of the faculty whether or not as a member of an agency of institutional governance.” If it’s good enough for California, why is it not good enough for UO?

http://www.insidehighered.com/news/2013/07/29/u-california-board-regents-adopts-new-measure-academic-freedom

    Rudnick, Gary, and Geller respond to ethics allegations

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    7/5/2013: My complaint to the bar is here, the Jaquiss story is here, Rudnick and Gary’s retraction demand over the headline is here. In response I’ve changed the headline on the post to more accurately reflect the facts: “Bar investigates Rudnick, Gary and Geller for allegations of lack of candor with the tribunal, in an attempt to pad legal fees”.


    The responses from Geller’s attorney Bradley Tellam and Rudnick and Gary’s attorney Arden Olsen are here. An excerpt from Tellam:
    Actually, Geller’s declaration to the court had plenty to do with HLGR’s hourly rates. He had recently signed a contract with HLGR for billing rates that were as little of half of what HLGR were arguing that state taxpayers should have to pay the same HLGR attorney’s for the public records case, and he’d have to have been pretty clueless to not understand that his affidavit would be used by Gary and Rudnick as support for their attempt to convince the judge to then double those higher rates.
    An excerpt from Olsen:
    He seems particularly upset about the fact that HLGR’s efforts to get $860K in public funds are being publicly discussed here and by Nigel Jaquiss in Willamette Week. I’m no literature professor, but I think they call that irony. My response to the Bar is due Tuesday, comments and suggestions welcome.

    Ethics charges against Frohnmayer et al dismissed

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    7/5/2013: Excuse me if I’ve got anything wrong here, it’s been a long strange trip.

    Back in 2010 or so Dave Frohnmayer and HLGR filed an ethics complaint on behalf of the county’s general counsel Mark Pilliod against newly elected DA Patrick Flaherty. After a year or so of digging the bar the bar rejected Frohnmayer and Gary’s complaint, finding Flaherty had not violated any bar ethics rules. HLGR picked up about $55K in billable hours from Deschutes county taxpayers anyway.

    Around the same time the bar also dismissed the ethics complaint Frohnmayer and Gary had filed against Associate AG Sean Riddell over his role in the DOJ’s investigation of how Kitzhaber’s girlfriend Cylvia Hayes got an energy consulting contract. Frohnmayer and Gary had accused Riddell of lying, bullying, and a variety of other bad things. Nigel Jaquiss of the Willamette Week has the story, which makes everyone involved look like idiots.

    Meanwhile Flaherty’s wife Valerie Wright filed a retaliatory ethics complaint against Frohnmayer and Gary. After a year or two the bar finally rejected her last appeal this April. Letter below, final doc dump here, way too much more here.