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

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:

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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

UO Attorney William F. Gary, Esquire, demands more retractions over Presidential Archives investigation

4/20/2015 update: Please see the retractions posted at http://uomatters.com/2015/04/archivists-resign-coltrane-got-sharon-rudnick-to-write-report-on-presidential-archives-release.html

4/15/2015 PM update: I’ve made a public records request to UO, in an effort to obtain some hard data and get to the bottom of all this back and forth between Mr. Gary and me:

From: Bill Harbaugh <wtharbaugh@gmail.com>
Subject: PR request, Presidential Archives release documents
Date: April 15, 2015 at 11:09:39 PM PDT
To: Lisa Thornton <pubrec@uoregon.edu> Cc: doug park <dougpark@uoregon.edu>, Interim President Coltrane <pres@uoregon.edu>, provost@uoregon.edu

Dear Ms Thornton –

This is a public records request for

a) all billing invoices from the HLGR and Hershner Hunter law firms to the UO, dated from 1/1/2015 to the present, and

b) any communications between UO President’s office or General Counsel employees and outside attorneys or consultants relevant to the preparation of the attached “Records Incident Report”, apparently written by HLGR attorney Sharon Rudnick, regarding the UO Presidential Archives release.

I’m ccing Interim GC Doug Park as he should be able to easily provide many of these documents. Otherwise, I ask for a fee waiver on the basis of public interest.

4/15/2015 AM: My apparently inadequate retraction of the original post is here. Since then I’ve received two additional emails from Mr. Gary, who is representing HLGR and UO lawyers Sharon Rudnick and Randy Geller. I will send and post a response to Mr. Gary’s additional demands promptly.

April 1, 2015, full letter here:

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April 10, 2015, full letter here:

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Oregonian reports on HLGR’s latest effort to suck the state’s sugar tit dry,

as Huey Long would have put it.

Steve Duin has the latest doings of UO’s law firm. No word on what role Frohnmayer and Rudnick might play. Duin’s report on an earlier effort is here. And here’s the twisted story of how HLGR came to get the apparently endless UO legal services contract, just as they were hiring retiring UO President Dave Frohnmayer.

By my math UO and the state have paid Frohnmayer about $1.25M in PERS and about $750,000 in salary since he retired as president in summer 2009. About $250K of that salary was while he was restarting his legal career at HLGR. Add in whatever he got from the Long lawsuit – not to mention his work for big tobacco and for BP, lobbying to kill money for legal services for the poor. His UO salary won’t end until May 2015, docs here.

That $940K our Trustees just paid Gottfredson – also apparently negotiated by HLGR, at ~$300 an hour? It’s beginning to look like we got off cheap.

State Bar’s ethics panel flubs another one

Regular readers may remember that I filed an ethics complaint with the Oregon State Bar about Randy Geller and Sharon Rudnick last year. Denied. Oh well, at least they did a thorough investigation, right? Well, now it turns out that Bar’s ethics committee is hilariously incompetent. They just tried to put attorney Liane Inkster, f.k.a Liane Richardson, on their disciplinary committee. Then, as Christian Wihtol reports, they got schooled by the RG:

The state bar, based in Tigard, said it had been unaware of Inkster’s tumultuous history last year as Lane County administrator until bar staff read about it at registerguard.com on Tuesday.

In addition to withdrawing Inkster’s name from nomination to the volunteer board, the bar is “opening up a disciplinary investigation” into Inkster’s conduct at the county last year, bar spokeswoman Kateri Walsh said. Inkster is an attorney and a member of the bar, which licenses and regulates attorney conduct.

Inkster was unaninmously fired last August by the Lane County commissioners from her job as administrator for increasing her pay in violation of county policy and being “untruthful” to an investigator the county hired to look into her conduct.

Frohnmayer, Gary and Rudnick win $440K for their client, and $560K for their firm.

8/20/2013: Part two of Duin’s series here:

“I didn’t understand,” Riddell admits, “how Mark Long could afford to have Bill Gary and Dave Frohnmayer come speak to the AG about an ongoing investigation. 

“Kroger wouldn’t meet with them. He and Frohnmayer hated each other. John thought it best they meet with me. I was the one to tell them they weren’t going to be treated differently than anyone else. I was the ‘No’ guy.”


8/18/2013: Steve Duin has part one of a series on John Kroger and this episode in the Oregonian. Meanwhile the bar has decided not to pursue my ethics complaint against Rudnick, Gary, and Geller. I’m preparing an appeal and I’ll have more when that’s submitted.

8/7/2013: From WWeek. The Oregon DOJ has settled the Mark Long / Cylvia Hayes / John Kroger / Sean Riddell cases for $1M. The DOJ says:

The state will pay Long $1 million. There is no admission of liability. Win or lose, these cases would have been significantly more expensive had they continued. The $1 million settlement covers the $560,000 attorney fee judgment won by Long in a case that was on appeal as well as the $7.5 million lawsuit he had filed separately.

Sharon Rudnick billed a lot of hours on this too, at $400 per. No word on whether or not UO’s Randy Geller will now retract his apology to Kroger. And still waiting for the Oregon Bar to decide how far to pursue the ethics complaint against Rudnick, Gary and Geller for allegations of lack of candor with the tribunal, in an attempt to pad legal fees for that $560K payday. The Oregonian has more here.

Rudnick’s law firm loses contract

7/21/2013: Edward Russo has the story in the Register Guard:

The city had relied on Harrang Long since 1971 for virtually all of its legal advice, a sizeable task that produced big billings for the firm. 

Since 2000, the city has spent a total of $21.4 million — or an annual average of $2.1 million — on legal fees, most of which went to Harrang Long. …

For all other legal work that Klein and Jerome did for the city that year, the city paid Harrang Long $180 an hour, which produced a combined bill of $430,701.

OK, that story is from 2009, when Eugene city manager Jon Ruiz ended the contract. And $180 an hour ain’t much these days. Sharon Rudnick of Harrang, Long etc. now bills UO for $300 per. And she charges Mark Long – the son of the Stan Long in her firm’s name, $400. No family discount? That’s stone cold. Wow. 

Rudnick, Gary, and Geller respond to ethics allegations

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.

Bar investigates Rudnick, Gary and Geller for allegations of lack of candor with the tribunal, in an attempt to pad legal fees

7/1/2013 retraction, per ORS 31.120
The original headline on this post, on 6/10/2013, was “Bar investigates Rudnick, Geller and Gary for alleged bill padding.”
On 6/20/2013 I received a retraction demand from Ms Rudnick and Mr. Gary per ORS 31.120, which gives news organizations 2 weeks to retract allegedly false and defamatory statements, before they can be sued for defamation. They wrote:

Every day for the past week, you have published information concerning your defamatory statements on your blogspot under a headline saying “Bar Investigates Rudnick, Gellar[sic] and Gary For Alleged Bill Padding.” [Emphasis added.] This headline is itself false and defamatory. The frivolous complaint that you filed with the Oregon State Bar does not allege “bill padding.” Because this headline is republished on Google and other search engines the republications of your original defamatory claim that we committed perjury and your subsequent deliberate misstatement of the nature of your complaint threatens to cause us and the law firm with which we are associated to suffer irreparable harm to our professional reputations.

Pursuant to ORS 31.120 we hereby demand that you publish a retraction of your false and defamatory statements concerning us as provided in ORS 31.215.

(Full letter below). The ethics complaint to the bar which they refer to stated, in paragraph 2:

In brief, I believe that Mr. Gary, Ms Rudnick, and Mr. Geller may have violated the ethics requirement for “candor with the tribunal”, in an attempt to pad the legal fees HLGR was trying to get from the state of Oregon as the result of a public records case, and that Mr. Geller may have violated rules regarding conflicts of interest stemming from his support for this effort, and may have used his public office to try and delay or prevent release of public records related to it.

Ms Rudnick and Mr. Gary argued that my headline summarization of “alleged bill padding” was not factually accurate, given that my complaint does not accuse them of bill padding per se, but rather of a lack of “candor with the tribunal”, in an attempt to pad their legal fees.

My headline was not factually supported, I retract it, and I regret publishing it.


6/19/2013 takedown update: 

The good news: UO’s attorney’s at HLGR finally admit that UO Matters is news media. This will certainly help me argue for public interest fee-waivers. I’m no law professor, but it also seems that they agree I’m protected under ORS 31.150, Oregon’s law regarding “Strategic Lawsuits against Public Participation”, which Randy Geller has argued in the past is not true. The law firm of Davis, Wright and Tremaine has information on this law here.

The bad news: They’ve sent me a “take-down” notice demanding a retraction of this post, particularly the headline. Under Oregon defamation law (ORS 31.120) plaintiffs can’t recover damages against news media unless they first request a retraction. ORS 31.125 explains the rules:

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.

I’ll have a response to Ms Rudnick and Mr. Gary’s letter after due consideration. Meanwhile, comments are welcome. Full text here:


6/12/2013 update. I’m not the only person who’s unhappy with what Rudnick and Gary charged the taxpayers. Oregon AG Ellen Rosenblum appealed the $550,000 in HLGR billings to the Oregon Court of Appeals back in July 2012 – apparently one of her first official acts – and it’s still in court. More docs soon:


6/10/2013. Nigel Jaquiss has a detailed story in Willamette Week, here, with brief responses from Geller and Gary.

It’s only tangentially related to the bills Rudnick and HLGR have submitted to UO for legal work involving the faculty union, here, which are probably close to $500K by now.

Elevator version?

  • Sharon Rudnick of HLGR got UO lawyer Randy Geller to go along with a plan to try and make taxpayers pay $860K in billings for a public records case related to the Mark Long / Cylvia Hayes energy consulting scandal. 
  • The Oregon Bar Association is now investigating allegations that Rudnick exaggerated HLGR’s rates when the judge was determining how much taxpayers would have to pay the firm, 
  • that Geller was less than completely forthcoming about HLGR’s contracts with UO when he submitted an affidavit in support of the $860K figure, 
  • and that given his conflicts of interest he probably shouldn’t have been the one setting UO’s public records fees and doing the redactions on the HLGR invoices for work billed to UO.

My ethics complaint to the bar is here, the affidavits from Rudnick, Geller, and Bill Gary are here (big file) and the letter from the bar’s Assistant General Counsel Chris Mullman giving them until 6/20/2013 to respond to the initial intake query is here.

More on how UO came to hire Rudnick and HLGR here, more on Mr. Geller’s fury over John Kroger’s investigation of UO’s general counsel’s office and Geller’s August 2012 appointment of Melinda Grier as UO GC Emeritus (sic) here, and more on his past problems following public records law here.

Fact check update: My bar complaint states that the Frohnmayer/Gary bar ethics complaint against DOJ attorney Sean Riddell led to sanctions against him. Actually, the bar dismissed their complaint in Sept. 2012, finding he had made no violations of the bar’s rules of professional conduct. My apologies to Mr. Riddell for the error.