3/2/2015: Campus Conversation” on rape response, 4PM today, Alumni Center.
I couldn’t make this, but the word from others is that this was a massive fail, with Coltrane getting called out repeatedly by the students for his lack of progress and efforts to pass off the blame.
2/27/2015: How much is the athletic budget contributing towards Miller Nash’s legal fees for defending basketball coach Dana Altman? Anything? I don’t know. Let’s find out:
On Friday Feb 27, 2015
Dear Ms Thornton –
This is a public records request for documents showing how much UO is paying the Miller Nash attorneys who are defending UO and Dana Altman against the lawsuit from the survivor of the alleged basketball gang rape.
Specifically, I am requesting documents showing how much has been spent so far, and how much of that has been paid for by general academic funds, athletic department funds, and other sources such as insurance, UO Foundation money, etc.
I ask for a fee waiver on the basis of public interest.
2/26/2015, 4:20PM: UO drops counter-claim, but still blames survivor for “damage to a good man’s reputation”, and claims *she* is discouraging rape reporting.
This is a first for Johnson Hall: admitting a mistake. It took “Sven Praoc” and 2100 petition signers to get them to do the right thing.
No news on when Coltrane will apologize for his prejudicial allegation of an “unlawful release” of UO Presidential Archives. Baby steps.
Josephine Woolington has the story in the RG, here. It appears Coltrane got some lousy legal advice, either from UO attorneys Doug Park and Sam Hill, or UO’s hired Miller Nash attorneys, Michelle Smigel http://www.millernash.com/michelle-smigel/ and Michael Porter http://www.millernash.com/michael-porter/:
Coltrane, however, criticized the online petition that characterized the UO as having filed a lawsuit against the victim, as opposed to responding to a lawsuit. He said he was advised by attorneys that it’s routine to counter a suit.
“Their suit would have us pay legal fees, and I was told it’s typical when you respond” to also file a counterclaim, he said.
… The UO’s updated response, however, still contends that Jane Doe’s attorneys “filed a lawsuit with unfounded allegations that damage a good man’s (Altman’s) reputation in an attempt to curry favor and gain traction in the media and create pressure for a public university to pay a hefty sum to (Jane Doe) even though it has done nothing wrong.”
The university argues that Jane Doe’s allegations threaten not only the UO and Altman, “but all sexual assault survivors in Oregon’s campus community.
“The publication of false allegations about Oregon’s handling of a report of an alleged sexual assault creates a very real risk that other survivors will wrongly be discouraged from reporting sexual assault and sexual harassment to Oregon,” which conflicts with the goal of a federal civil rights law, known as Title IX, the response said.
Say what? UO’s revised and sanitized response to the lawsuit is less intimidating to victims who might consider exercising their civil rights than was the previous version, though no less offensive:
Full docket w/ old and new language here, thanks to recapthelaw.org
Meanwhile, Coltrane and Bronet’s Campus Conversation and Progress Report on Addressing Sexual Violence is scheduled for Monday, March 2, from 4 p.m. to 5:30 p.m. at the Ford Alumni Center Giustina Ballroom.
Petition protesting UO decision to sue victim has 550 signatures as of 1:00 PM 2/24 2100 signatures as of 4 PM 2/26. Many powerful statements, read them here.
2/25/2015 update: Did UO Strategic Communicator Tobin Klinger lie to the student newspaper about the counterclaim?
From the comments:
This is from the Emerald story: Toby Klinger said this: ““The university is not seeking court costs or attorney fees from a student.” Emerald. http://www.dailyemerald.com/2015/02/23/petition-against-uos-counterclaim-in-recent-sexual-assault-litigation/
Nonsense. From the Answer filed in court by lawyers for the University: “defendants are entitled to recover attorney fees from the plaintiff.” Paragraph 102.
And this also: “Oregon is entitled to recover its reasonable attorney fees from plaintiff, or in the alternative, from plaintiff’s counsel.” Paragraph 106.
Toby Klinger is lying. Why is this tolerated by Coltrane?
I sent Klinger an email yesterday asking him to clarify his statement, and I cced Coltrane’s Chief of Staff Greg Rikhoff. No response.
Another 2/23/2015 update: UO student reporter Francesca Fontana has some posts from the petition, some sophomoric BS from $115K Duck PR flack Tobin Klinger, and the cutting response from the plaintiff’s attorney, here:
Samantha Brace, a UO student, wrote, “As a person, I am appalled. As a female student at the University of Oregon, I am outraged. UO is putting them self on the wrong side of history, the student body does not support the legal actions being taken against this woman. Make it known.”
Alumna Diana Salazar wrote, “Stop victim blaming! As an alumna, Im ashamed to have gone here and will reconsider recommending folks to UO.”
University spokesperson Tobin Klinger told the Emerald that the counterclaim is not directed at the plaintiff herself, but rather her attorneys.
“The university is not seeking court costs or attorney fees from a student. Rather, the counterclaim is directed at the Colorado-based attorneys. The goal is to hold the plaintiff’s attorneys responsible for their actions in bringing forth false allegations to leverage a difficult and unfortunate situation for their own financial gain,” he said in an email.
John Clune, the Colorado based lawyer representing the plaintiff responded to Emerald inquiries about the university response with the following statement:
“They need to just stop. This whole counterclaim was an ill-conceived PR move that has blown up on them. Since they are finding out that it looks bad to sue a rape victim, they are now saying that it was only intended for her lawyer. That is obviously not what the counterclaim says. We genuinely would like to help UO do a better job with responding to campus rape and would love to work together to achieve this but their behavior so far is not encouraging.”
2/23/2015 update: John Canzano calls out UO and Doug Park for “a brush-back pitch against all women on UO campus”, in the Oregonian here:
If you’re a student on campus at UO who reports an alleged sex crime, but the Lane County District Attorney doesn’t file charges, you now know you’ll potentially become a target of the university. You may get sued by UO. You may not be able to get standard care and services on campus. Even if the DA says he believes your account but couldn’t prove it beyond a reasonable doubt, you’re potentially a target.
Think that fosters reporting? Think that makes women at UO feel safe?
The counter claim seeks legal expenses and a dismissal of the original lawsuit. It’s legal wrangling. Some would tell you this is standard practice in an attempt to have any lawsuit dismissed. But a move like this carries a bigger punch. The university must know that and should have been more responsible with the filing.
I don’t think the general counsel is acting alone here, either. I think Oregon took great satisfaction in throwing a legal haymaker at “Jane Doe” for the trouble she’s caused administrators and coaches. The counter claim is the equivalent of a brush-back pitch to all women on campus.
I’m not much for sports metaphors, but they’re probably the only thing the Trustees who now run our university understand.
In other news, Duck PR flack Jennifer Winters reports in “Around the 0” that Interim President Coltrane Coltrane wants to update us about his efforts to encourage reporting. Really:
The Campus Conversation and Progress Report on Addressing Sexual Violence is scheduled for Monday, March 2, from 4 p.m. to 5:30 p.m. at the Ford Alumni Center Giustina Ballroom.
The forum will include an update from interim UO President Scott Coltrane about the university’s campuswide efforts to prevent sexual assault, improve support services for survivors and encourage reporting.
2/23/2015 update: Tyler Kingkade has a report in the Huffington Post, here:
The “publication of false allegations about Oregon’s handling of a report of an alleged sexual assault creates a very real risk that survivors will wrongly be discouraged from reporting sexual assaults and sexual harassment to Oregon, in direct contravention of the goals of both Title IX and Oregon,” the university’s lawyers wrote in their filing.
Colby Bruno, senior legal counsel for the Victim Rights Law Center, a nonprofit in Boston that provides free legal services to sexual assault survivors, disagreed with UO’s assessment.
“In fact, it’s always the contrary,” Bruno told The Huffington Post Monday. “These types of lawsuits help bring voices to some victims who feel wronged, but were not in a place to speak out about it. These lawsuits often help with reporting, and do nothing to discourage reporting. Furthermore, a university’s reaction like this could actually discourage reporting because the victims on campus do not feel protected by their university if at the first sign of problems, the university lashes out against the victim.” …
UO called Doe’s lawsuit “frivolous” and “unreasonable,” and said the allegations “threaten to harm not only Oregon and Altman but also all sexual assault survivors in Oregon’s campus community.”
John Clune, who is one of Doe’s attorneys and is involved in several high-profile campus rape lawsuits, said he has never seen a university use the type of language that UO did in its counterclaim.
… Other colleges have pushed back in lawsuits against sexual assault survivors, but it’s highly uncommon for schools to go as far as Oregon has and sue the alleged victim. …
2/23/2015 update: Who made the decision for UO to sue the alleged basketball rape survivor?
Looks like it was Interim General Counsel Doug Park, presumably with the consent of Scott Coltrane and his “Executive Leadership Team”:
 |
Doug Park Interim General Counsel (541) 346-3082 [email protected] |
From the GC job description, here:
Description of Duties
… As the chief legal officer for the university, the General Counsel is responsible for managing the legal affairs of the university and overseeing the office’s provision of legal services across the entire spectrum of university life.
The GC advises the university’s senior leadership team, including the president, UO Board of Trustees, Senior Vice President and Provost, Vice President for Finance and Administration/CFO, and others, on the legal implications of strategy, business, and policy decisions.
The GC retains and supervises outside counsel when prudent. The GC works closely with the University Secretary on all matters with legal implications that come before the board.
This position supervises the office staff including five attorneys, one executive assistant/operations manager, and one legal assistant (all officers of administration).
2/22/2015 update: Sign petition protesting UO and Altman’s decision to sue alleged rape survivor
The University of Oregon has become the first institution in higher education to sue a rape survivor pursuing her rights under Title IX of the Civil Rights Act — all after violating medical privacy laws by seizing her counseling records from the campus health center, and asking campus counselors to give her substandard care.
It has nearly 200 signatures as of 4:30PM, and many very powerful comments.
Obviously some of the facts are still in dispute, and I don’t know who is circulating this petition, but signing it seems like a good first step towards telling Scott Coltrane and his lawyers that they aren’t speaking for UO when it comes to this dishonorable decision.
Keep in mind that while the Lane County DA did decline to prosecute, saying he didn’t doubt the events but didn’t think he could prove the case beyond a reasonable doubt, UO eventually expelled the three perpetrators for non-consensual sex, and banned them from campus for 10 years. Coach Dana Altman has all but admitted he did not do his due diligence in investigating why Providence had banned one of them from playing basketball for a year (initially he’d been banned from campus as well) when recruiting him for UO. The UO administration’s own hand picked “Presidential Review Panel” has called for recruiting reforms. And UO is now claiming that the survivor’s lawsuit is “frivolous”?
2/19/2015: Dana Altman and UO file counterclaim against alleged basketball rape survivor
Yes, I’m sorry to say you read that correctly. Andrew Grief has the report in the Oregonian, here. Full despicable counterclaim here:
Of course the reason Canzano wrote his “Every Day with Dana Altman is Another Day in the Muck” column and the reason for the hundreds of other news reports, columns, blog posts, and angry letters to President Mike Gottfredson was not the survivor’s purported efforts to manipulate public opinion through the press, it was the UO administration’s efforts to cover up the allegations and UO’s inept handling of them, once they finally became public.
And now UO and Dana Altman are, literally, blaming the victim. And suing her.
On top of that they are claiming that the reason they are suing her for their attorney’s fees is because they think her lawsuit will discourage civil rights claims and rape reporting, and because they think she has “damaged a good man’s reputation.” I’m sorry, but this is bullshit. Watch Dana Altman’s news conference. The damage to this Eagle Scout’s reputation, and to UO’s, was entirely self-inflicted:
Timeline and links to the docket and filings here.
So who is footing the bill for the Miller Nash attorneys who filed this nasty counterclaim? It looks like UO is. With student tuition money? By raising the mandatory fee UO students pay for football and basketball games?
When the University of Oregon can’t rely on the lawyers in the General Counsel’s office to fight students like the young woman who claims she was raped by basketball players, it goes to a Portland law firm that serves business and industry. There it finds lawyers whose careers and high incomes are based in large part on blocking lawsuits by university and school students, faculty, employees, and whistleblowers.
These are the lawyers defending UO against the lawsuit by the young woman, with a list of some of their cases defending universities and schools:
Michelle Smigel – http://www.millernash.com/michelle-smigel/
Emeldi v. University of Oregon (2014).
Michelle successfully represented the University of Oregon in the jury trial of a Title IX claim . . . .
Norman G. Lewis v. Washington State University, et al. (2014).
Our client, a state university, won a decision from the United States Court of Appeals for the Ninth Circuit which held that a tenured professor failed to establish a constitutionally protected property right to continue as Project Director of a federal grant. . . .
Sibley v. Portland Public School District (2011).
Our client Portland Public School District won a jury verdict after a four-week trial, defeating claims by a former administrator who alleged “whistleblower” retaliation, defamation, “false light,” battery, and intentional infliction of emotional distress when her position was eliminated after she raised concerns about safety in special education programs.
Disability Discrimination and Whistleblower Jury Verdict.
Obtained jury verdict in favor of employer in lawsuit asserting disability discrimination, workers’ compensation discrimination, and violation of whistleblower statute.
Michael Porter – http://www.millernash.com/michael-porter/
Dismissal of Instructor Free Speech and Discrimination Claims.
Obtained . . . ruling dismissing case by university instructor in which court determined that in-class speech was not protected under the Constitution . . .
Disability Discrimination and Whistleblower Jury Verdict.
Obtained jury verdict in favor of employer [against] lawsuit asserting disability discrimination, workers’ compensation discrimination, and violation of whistleblower statute.
Judgment for School District in Constitutional Due Process Case
Obtained summary judgment in favor of school district and administrators [against] student-athlete’s claims of Constitutional procedural and substantive due process [violations] . . . .
Free-Speech Claim Dismissal.
Obtained dismissal of lawsuit by college instructor concerning comments made to media.
Judgment on Sexual Harassment and Retaliation Claims.
Represented medical office [against] claims of sexual harassment and retaliation . . . .
Student First Amendment Claims.
Represented school district in First Amendment claims arising out of discipline of student who made . . . statements about others on Web site; student represented by American Civil Liberties Union.
Religious-Freedom Claims.
Represented school district [against] religious-freedom claims brought by student . . .
Reading this blog makes my blood pressure soar. Arggg! So much lunacy in such a small place.
For what is a university profited, if it shall gain the whole world, and lose its own soul?
This is stellar! Way to go UO and Dana Altman! I’m sure your taking it to this girl will surely make anyone think twice about reporting a sexual assault, you stupid schmucks. We got 10s of thousands and 100s of thousands to throw at defending UO and a coach but all the school can scratch together is $15,000 for victims in emergencies? Pathetic.
Truly. Like Publius points out, the UO found her accusations to ring true enough to find the players ‘responsible’ and suspend them and remove them from campus. But her suit is more about the handling of her complaint by the UO and Altman’s recruiting practices that brought a player previously accused of sexual misconduct to campus without proper due diligence.
My understanding of retaliation is that it must meet the following standards: 1) the victim engaged in protected activity; 2) the victim suffers adverse events, and; 3) the adverse events can be causally linked to the participation in protected activity; 4) and that the adverse event would serve to deter a reasonable person from engaging in protected activity in the victim’s shoes.
I understand this likely walks a fine line as it’s a suit/countersuit. If the countersuit itself does not constitute retaliation, certainly the inappropriate access of her therapy records must.
It really boils my blood that the university’s countersuit alleges that the victim’s suit is what will keep survivors from coming forward, when in fact it is the university’s behavior in the wake of these accusations that will do just that.
So, the U of O adm will not “bow” to demands for “hefty sums” in rape allegations. It will, however, pay Mike Gottfredson one million dollars to clear out of his office in one day,
The U of O adm itself acknowledged this young woman was mistreated, when it took disciplinary actions against the players. Now it says her concerns are “frivolous”, driven by greed, etc.
It seems the only response to problems this adm knows is to attack people–victims, professors, etc. Will Silent Scott Coltrane have anything to say about this?
The UO countersuit doesn’t say that the woman’s rape claims are frivolous. The claims it says are frivolous/unfounded are that Altman knowingly brought a rapist to campus, that UO intentionally delayed taking disciplinary action, and other accusations about the UO’s handling of her rape allegations.
I like that Altman’s defense is that he is too incompetent to be a criminal.
It is pretty rich of the filling to accuse the plantif of making claims “without foundation” when the very first citation in the filling is to support the sentence “Further, it was subsequently reported that the finding of sexual misconduct was overturned” with a link to to this story which makes clear that actually the vice president who reversed the panel’s ruling continued to find Brandon Austin guilty of sexual misconduct
Thanks for that important reminder.
Except the UO’s suit never disputes the plaintiff’s underlying allegations of sexual misconduct,
People in this thread seem very confused about this fact.
https://www.youtube.com/watch?v=ToKcmnrE5oY
I’m starting to worry that even though I’m grant funded, work off-campus and having nothing to do with the administration, I’m working for an organization that is more bad than good.
The GTFF has issued a statement of support for the survivor and her counselors: http://gtff3544.net/gtff-statement-of-support/
The treatment this woman has received from this administration is simply unconscionable.
I disagree. I don’t think the facts illustrate that claim–at least not the facts that we know.
What claim are you disputing? And based on what facts?
I’m not being a troll here. I’ve just never seen a clear, factual articulation of how the UO’s actions toward this woman rose to the level of unconscionability. How did they?
One person’s unconscionability is another’s breach of standard operating procedure, which has been confirmed in this case.
-stalling the investigation (read the timeline above)
-accessing her private counseling records w/o her consent
-threatening her counselor(s) jobs and demanding that her counselors give her “non-standard” care
-countersuing her
If you can’t see it, it’s because you don’t want to see it.
We now have two excellent reports, one from the senate task force, the other from the president’s panel, detailing the massive failures of the U of Oregon to deal with sexual harassment/assault, and calling for substantial changes. The president’s panel especially calls for substantial changes in athletic department practice.
Yet the administration’s counterclaim to the lawsuit begins thus:
“Title IX rights and student safety at the University of Oregon (“Oregon”) are among Oregon’s highest values and central to its mission. Therefore, when Oregon’s efforts in service of that mission are falsely maligned, Oregon must set forth the facts. Otherwise, survivors of sexual misconduct will be chilled from coming forward….”
What horse-shit. Does anyone believe this but the lawyer flack who wrote this, and Tobin Klinger? Does Silent Scott Coltrane believe this–as he ponders what changes are needed, after these reports?
The administrative leadership of this university is sick.
One more reason that Dana Altman is the most hated man on the UofO campus. And, that’s with quite a few others there that are pretty hatable in their own right. He’s a major blemish on the University and everyone associated with it.
[…] Dana Altman and UO file counterclaim against alleged basketball rape survivor […]
I can’t wait to hear Tobin Klinger and Doug Park try and spin this evil shit.
You mean the same way Doug Park spun things to keep ION faculty out of prison for fraud?
uhhhhh don’t you mean kept Espy of some other admin(s) out of trouble?…..since it was her spiteful actions that exacerbated the problem and created the need for more consultants to be hired (to do worthless interviews that only served to distance the admin from any problems)…..firing the ION grant coordinator served only as an attack on faculty she/they were not fond of…..
I had never seen someone spittle with rage until I saw Doug Park talk about how ION faculty giving a raise to a tech by having that person work fewer hours than listed was, apparently, the worst crime possible. By framing it that way, it justified the millions spent to comb through the accounting books and create a crisis in which they (the lawyers) called the shots and cemented their power in the current structure.
I made a comment earlier about the sociopathic tendencies of corporate defense lawyers that apparently failed the UO Matters Euler’s number test. But your story makes me want to try again.
In regards to your comment :
I know of at least one instance where someone has engaged in exactly the practices described in the ION audit report, although possibly not with grant money. Unfortunately, the OUS Chancellor’s Office tells me that since the reorganization, UO conducts its own audits and OUS has no jurisdiction. Should I go directly to the Secretary of State?
The university has just started an internal audit function after the university broke away from OUS. I don’t think internal audit has their own website yet but I found a link to their fraud and ethics reporting hotline on the business affairs page under related sites.
http://ba.uoregon.edu/faculty
Thanks. Unfortunately, I can’t say I feel especially reassured by the UO internal audit charter, which seems to make it clear that the function of that fledgling office is to provide recommendations to the BoT and “management” rather than to provide transparency and accountability to the public.
Yeah, I’ve seen a little spittle from Park too.
a brief tutorial on how to identify a post by Kimberly Espy or one of her sycophantic JH buddies.
Take “fabric destroyer” as a case in point.
1) the first and most obvious clue: they attempt to whitewash the fact that she was kicked out of here for being a destructive self-interested administrator who quite literally alienated the majority of science AND humanities faculty on the UO campus. The Blonigen report was as explicit as this administration will ever be about the blatant conflicts of interest that characterized her “leadership”, but “fabric destroyer” paints her (extremely abrupt!) departure as a voluntary choice on her part while ignoring the obvious documentation of her sinking status on campus. Also, take note of how fabric destroyer vaguely alludes to “much needed reforms” to imply that her disgraced departure was a reaction to those reforms. NO. Her departure was forced by those who realized that she was a destructive and self interested administrator.
2) the second slightly less obvious but equally damning clue: just like Kimberly Espy herself (hi Kimberly), fabric destroyer can think of no way to applaud an institution besides the raw numbers of their budget (to quote, “she …exercised her no confidence vote in us and accepted a big promotion to Senior VPRI at a Top 20 Public Land Grant Research University with seven times the research expenditures.”). Notice, friends, how fabric destroyer can only see numbers and is just as oblivious as Kimberly Espy herself on the things that actually define good research and good science. Thus, we ended up with a new institute defined in Kimberly Espy’s image and headed up by her own associate VPR who still happily enjoys all the benefits of her title as director of the institute she helped to create while working “for” this university. Hey, what’s a little conflict of interest amidst JH insider buddies?
You won’t be able to redefine your disgraced departure Kimberly
Andrew Espy. You lost. Better luck at the next place. You’ll need it.
Not an apologist for the former VPRI or a JH sycophant, but as I commented on UOM last August:
“Science Faculty Member” and “FBI Informant” have it right. At least two ION faculty members committed federal crimes of defrauding the US gov’t (wrongful claim of overtime, misrepresented FTE of employees) yet it was the ION OA/business manager who was thrown under the bus because she signed off on what her corrupt bosses said to do.
“FBI Informant” asked us to consider the curious case of Dr. Karr and why faculty members hired criminal defense attorneys. Perhaps the Open Records King of Eugene should look into that?
… a brief tutorial on how to identify a post from those who obstruct justice and, on the advice of counsel, prepare to respectfully exercise their Fifth amendment right and decline to answer that question.
You’re a troll. Hiring a lawyer isn’t evidence of guilt. Now get your sorry ass off my blog.
Whoa, whoa, whoa!!! Some troll stole my screen name! I haven’t posted since before X-mas!
The desperation of the FAKE “XDH” post is almost laughable.
Yes Kimberly Espy and her sycophantic JH buddies will always put front and center the problems with payroll in ION. But they will not be quite as eager to discuss the deliberately deceiving accounting practices that Espy and Pat Jones used to misappropriate $500,000 to $1,000,000 PER YEAR from indirect costs that were owed to departments and institutes and into the coffers of Espy’s own office. This crime was quietly corrected without a single apology or statement of regret…yet another time in which the self interested and soulless tactics of Kimberly Espy, Pat Jones, and the rest of her gang got off Scott free because of cooperation from her buddies higher up, After all, 500,000 to 1,000,000 per year would even cover the base salary of four of these insiders at a time…it’s all chicken feed numbers to them, unless of course they can use it to their own political advantage.
Read the Blonigen report. Blatant conflicts of interest, allowed to fester and linger on even after Kimberly Espy was KICKED off of campus. alienation and consternation of virtually EVERY GROUP interviewed about the destructive and disastrous actions of Kimberly
Espy and her gang…an overwhelming and broad coalition of faculty that spread across the whole university…not just a few faculty who were involved in payroll problems.
The payroll problems in ION should not be minimized either, but don’t let Kimberly and her buddies convince you that that somehow accounts for her destructive and self-interested actions, or that that explains her disgraced departure from our university. She and her buddies quite literally made themselves RICH by feeding off of the flesh of this university…while the payroll issues – which absolutely should not have happened – were motivated by a simple attempt to get work done.
Kimberly Espy lost. Get used to it. History will not change.
No, duh, Pot calling Kettle did not seemingly mean that.
Oh, but what’s a little fraud among friends and faculty! It was UOM crack(pot) reporting that noted this in March 2013. “At 4:30 yesterday Bean called an emergency meeting of the ION PI’s, for 8AM in the JH conference room.” It soon was apparent that this was a federal criminal investigation of ION faculty for payroll abuses, e.g. falsified time sheets, ghost employees, insurance fraud, and other financial improprieties. UOM went silent, but not our current Governor, Kate Brown, who detailed the fraud in the October 2013 Audit Report, see
http://library.state.or.us/repository/2013/201311011035255/
Then President Gottfredson elected to indemnify and defend the implicated faculty and Park, based on his experience with criminal litigation, negotiated with the fed to mitigate the criminal liability.
I followed the link, and you seem to be exaggerating the seriousness of the ION situation. The auditor’s report summary says:
“The University of Oregon (UO) administration became aware of potential
payroll violations involving federal grants in January 2013 and requested a
review by the Internal Audit Division for the Oregon University System
(OUS).The audit uncovered inappropriate payroll adjustments for research
personnel paid by federal grants in the Institute of Neuroscience (ION). In
addition, several OUS payroll audits of universities, including UO
specifically, recommended better payroll practices. The Secretary of State
Audits Division was asked by OUS to determine the extent of payroll
discrepancies.
We examined payroll records for a number of UO employees and obtained
emails for the business or payroll managers of selected departments to
examine for potential misuse of overtime and full-time equivalent (FTE)
changes.
Based upon our review of the emails we received, we identified a number
of concerns related to overtime and other payroll practices that we believe
warrant UO leadership’s attention; specifically, the use of overtime to
circumvent payroll reductions due to state-enforced furloughs and salary
freezes, and other adjustments to temporarily increase employees’ pay. We
also found a few instances where managers in academic and research units
discussed FTE increases as an option to increase an employee’s pay
without a clear expectation the employee would work more hours.
We recommend UO leadership communicate general expectations and
establish better controls over compensation, vacation time, and overtime.
In addition, we recommend they review the other payroll issues we
identified and consider seeking reimbursement from employees for
unearned compensation.”
Contrast this to the serious allegations raised in the Blonigen Report on Kimberley Espy’s management: http://senate.uoregon.edu/sites/senate.uoregon.edu/files/RIGE%20Review%20Committee%20Report%20-%20FINAL.pdf
This report concludes with what is essentially a no-confidence decision on Espy, and a claim of conflicts of interest regarding her handling of the PSI:
“The repeated statements of consternation and confusion among almost all groups we
interviewed about the internal policies, procedures, and practices of RIGE show an ongoing
problem with transparency, which has generated a widespread lack of trust in RIGE’s
dealings with the campus community. RIGE has made a number of substantial decisions
regarding research activity in the research areas of the RIGE leaders, particularly the
formation of the Prevention Sciences Institute, without any formal processes for oversight,
except for ultimate oversight by the Provost.
In order to reestablish confidence, there should be systematic and regular reviews of RIGE
at the administrative level, both for the VP of RIGE and for the members of the RIGE
leadership team. There should also be clear and explicit processes for oversight,
particularly for issues where there may be conflicts of interest.”
Some of us still have the email from HR back in the day that OK’d overtime for furlough days. ION had plenty of money and followed the guidelines on the furlough & overtime. Most of us actually worked the days we marked down for taking furlough days and we all worked the overtime we claimed. Why they ‘repaid’ for our overtime I have no idea.
No comment on the raises to FTE without working the hours, but everybody gets paid to do a job. Some get done sooner than others. The worker bee in question was gone then immediately hired back at the full wage she was getting paid previously via the uptick of FTE…
While I appreciate Doug Park going to bat for the ION faculty, I imagine the negotiation as something like this:
DP: We recognize the seriousness of the criminal activities of the actions UO faculty and personnel, and propose, due to the millions we spent looking for additional crimes, that our efforts be translated into a commuted sentence of only 5 years in the federal pen for these criminals.
NIH: Let’s see, did the PIs pay themselves? No? Oh, they were just trying to give the raises that were budgeted into the NIH grants they are receiving but these raises were blocked by a state action? Come back when you have something worth our time.
DP: How about 3 years in the federal pen?
UOM invites comparison of the seriousness of a federal criminal fraud investigation of faculty that prompted a state audit with that of an internal report of faculty opinions about an admin who instituted needed reforms. The external audit speaks for itself. The internal report highlights former VPRI mistakes and accomplishments, but no criminal wrongdoing, no conspiracy to defraud taxpayers, and she is gone. Such comparisons take non sequitur to a new level of irrelevant tangential distraction of fragmented ideas. Last fall, it was noted that she saw the AAU handwriting on the wall, exercised her no confidence vote in us and accepted a big promotion to Senior VPRI at a Top 20 Public Land Grant Research University with seven times the research expenditures. The flighty UOM comparison brings to mind the Omundson Op-Ed quote about failed searches, “in this poisonous cauldron of self interests, the fabric of the UO as an educational institution is being destroyed.”
https://www.youtube.com/watch?v=lb13ynu3Iac
UO has becomes death, the destroyer of admins, but UOM? “I love the university and the state,” he says. “They’re not going to get me to leave here; I’m going to make this a better place.”
I looked through the audit report again. I searched it for “criminal” and “fraud”. The words do not appear.
So, are you suggesting that Audit Division Director Gary Blackmer soft-pedaled his investigation?
It seems more likely that it was clear to him by then that, despite Espy’s scare tactics, there was no crime or fraud.
UOM,
While the comparison of the auditor’s report and the Senate report is interesting, it misses a very important distinction between authorship and intended audiences.
I’ve read LOTS of audit reports and worked with a lot of auditors. The tone of their reports often have a lot to do with how cooperative staff are in their investigation and what kind of assurances they get for implementing the recommended controls. (re-read the statement on the very last page).
The evidence presented in the report is prima facie payroll fraud.
If the auditors had come in and found it a widespread practice with complicity at higher levels in the organization, or that the University had willfully ignored previous attempts to encourage better oversight, they would have used the stronger language that you seem to be searching for. Since this appears to be a first strike, they give a chance to correct, but would come out with the sharp knives if it happens again.
So, you are accusing Blackmer of shading his audit.
I know of at least one instance where someone has engaged in exactly the practices described in the ION audit report, although possibly not with grant money. Unfortunately, the OUS Chancellor’s Office tells me that since the reorganization, UO conducts its own audits and OUS has no jurisdiction. Should I go directly to the Secretary of State?
I don’t know.
No, Doug Park is carrying the water for somebody higher up.
UOM knows this and when the previous commenter noted “a federal criminal fraud investigation of faculty that prompted a state audit” the distinction between a criminal investigation and a state audit is obvious. The Audit Division does not hand down indictments. “I’ve read a few of these” is correct, the evidence presented in the audit report is a prima facie case of fraud. ION faculty conspired to commit fraud and then did so for a number of years, then they obstructed justice.
Truth is, UOM moderates his blog and selectively blocks some comments do not support his goals.
Well, that would certainly explain–at least in part–why Public Records won’t give me the records I’ve been asking for and why they’re lying about it.
Comments here and just above remind me of the primary reasons I withdrew from the UO Provost Search. I did not want to endure the scorched Earth blog tactics that serve as a tool for a fledgling Union and have my admin career end in the radioactive morass that UO perpetuates. External candidates beware, there are no honeymoons in Eugene and even less good will.
Question: Does Gottfredson still hold legal liability for his actions, even though he was sent packing with a $1 million dollar golden parachute? He was at the helm at the time.
• Get vocal about calling for Altman’s firing. Raise some ruckus on campus about wanting him out.
• I hope Jane Doe’s lawsuit holds, the U of O gets hit with a huge fine & found to be in violation, as well as having to not only pay their own legal fees for the countersuit, but for her legal fees as well as fines. A good legal lashing from the judge, to the U of O, about the countersuit would be in order as well.
For heaven’s sake can’t you find a lawyer who actually understands this countersuit? UOM, can’t you find a lawyer to advise you who has actually practiced law so you can get your facts straight? You have riled an entire campus over a countersuit you don’t understand.
Please explain it to us, “no one”. And use citations as appropriate.
UOM 2/2/15 “I’m no lawyer, but…”
Katie Rose Guest Pryal, a columnist for The Chronicle’s Vitae and a former professor of law at the University of North Carolina at Chapel Hill who specializes in higher education, mental health, and social-justice issues, writes,
“However, after researching Oregon’s argument, I stopped laughing. Because it appears that the university was right. By an education-law loophole, it does have a right to her records under FERPA. And that means everything has to change.”
“The university is right, under the law. It can access the therapy records of a rape survivor in order to defend itself against a lawsuit.”
https://www.youtube.com/watch?v=jSpBwt4hFN8
See her commentary in today’s Chronicle for more.
The question seems to be whether the UO accessed her patient information before or after her lawsuit was filed. Since her initial Jan. 8 suit references the UO illegally accessed her counseling files, it appears that the UO grabbed her private files before her suit was filed. I’m no lawyer, but that makes it look illegal, even under FERPA.
Sounds like a standard “litigation hold” by in house counsel. It would likely be legal malpractice to NOT get these records. Not sure why everyone is so exercised about this.
I’m no lawyer, but yes, they would likely be part of discovery. I think the issue is that the GC’s office may not have sequestered the records. For example, when Doug Park was desperately negotiating to get the Presidential Archives back from me I put the thumb drive in an envelope, signed the flap, and gave it to my lawyer’s secretary. My lawyer later handed it over to Park, unopened.
This seemed to be SOP for my lawyer and his office, but from what I can tell UO’s GC office collected this student’s confidential records but did not seal them away until discovery, leaving themselves open to accusations of mischief-making. Pretty dumb.
See if I’ve got this right: Before a lawsuit is filed, it’s OK to sequester files as a precaution, to maintain evidence in case there’s action. But if they are privileged patient files, it’s not okay to read them. This seems to be the UO’s defense — they took the alleged rape victim’s counseling files but did not read them. A simpler alternative would have been to instruct the Counseling Center to seal the files and keep them there — common meaning of a litigation hold — without transferring them. The subsequent public complaint from Counseling staff seems to indicate that something very non-standard was done instead. Curiouser and curiouser. On a more general note, this is another example of the Athletic Dept. demanding that they be left alone to do their own bookkeeping, PR, money-raising, salary-setting — until the shit hits the fan. At that point it’s all suddenly a University issue with JH left to hold the bag. Sad.
Indeed. “but from what I can tell…” UOM [insert more self-serving speculation]. Park can review relevant records and advise his client in reasonable anticipation of litigation before discovery. Morlock’s claim to a unique privilege would apply if she were providing psychotherapy privately to the plaintiff, but that was not the case. This is much ado about nothing.
See comment by “UO sustained?” on the “Don’t Trust UO to Do the Right Thing” post,
…and the therapist may benefit from reviewing her ethical training and guidelines. Carefully consider this APA standard,
1.03 Conflicts Between Ethics and Organizational Demands
If the demands of an organization with which psychologists are affiliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights.
Ms. Morlok’s provided counseling to the plaintiff as a UO employee, and as noted by law professor Katie Rose Guest Pryal (disinterested skeptic) in the Chronicle “…after researching Oregon’s argument, I stopped laughing. Because it appears that the university was right. By an education-law loophole, it does have a right to her records under FERPA.” Another APA standard is relevant:
1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority
If psychologists’ ethical responsibilities conflict with law, regulations or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights.
According to the APA taking “reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code” does not require rigid adherence to the Code, but rather that the clinician “make known their commitment to the Ethics Code.” Put another way, laws trump the Ethics Code. Morlock was specifically trained on this by her employer.
Thanks, Pretty Dumb. I’m trained in the sciences, not law. If I understand what you’re saying, then all that’s required for an in-house lawyer to comb through a student’s in-house psychological counseling files is “reasonable anticipation of litigation” — a call shot based on worrying that something might, maybe, turn into a suit. The legalities here are frightening. And to see the UO taking advantage, corporate-style, is horrifying. Maybe “much ado about nothing” to a lawyer, but kind of a big deal to me.
Lawyer’s opinions are a lot like assholes, everybody’s got one and everyone thinks everyone else’s stink. FERPA definitions of education records, treatment records, and legitimate educational interest will be debated, all while referencing this section: “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.” 34 CFR 99.31(a)(9)(iii)(B).
…and for what purpose??
IF Park looked at the records, he probably did so in response to a question from his client, and who among us can prove that?
Is that you, Doug Park?
I’ll assume Doug Park gave the go ahead for the countersuit. Any first year law student could see a country mile away this countersuit is one of the dumbest moves made.
I’m rather sure there is massive panic in Johnson Hall over the lawsuit and what it has as potential to unearth a trove of embarrassing documents about the rape case handling.
All of these educated administrators sitting around in meetings and this countersuit is the best they can come up with? This is like drenching yourself in steak sauce before you go lion hunting.
Title IX and all the laws and student conduct codes have been twisted so badly in order for one thing and that is so institutions like UO can hide behind them instead of taking on tough issues and doing what is right. I’m sure Doug Park is cueddled up under his desk repeating over and over something about attorney client privilege and FERPA. Stop thinking about covering asses for once and you might be surprised by what you find.
Comment of the week. Contact our swag office for your coffee cup, and remind me never to go lion hunting with you.
This is from the Emerald story: Toby Klinger said this: ““The university is not seeking court costs or attorney fees from a student.” Emerald. http://www.dailyemerald.com/2015/02/23/petition-against-uos-counterclaim-in-recent-sexual-assault-litigation/
Nonsense. From the Answer filed in court by lawyers for the University: “defendants are entitled to recover attorney fees from the plaintiff.” Paragraph 102.
And this also: “Oregon is entitled to recover its reasonable attorney fees from plaintiff, or in the alternative, from plaintiff’s counsel.” Paragraph 106.
Toby Klinger is lying. Why is this tolerated by Coltrane?
Good question. I have forwarded it on to Mr. Klinger and Coltrane’s Chief of Staff Greg Rikhoff, and I’ll post their reply.
Does OR have an anti-SLAPP statute? I’m not an attorney, nor do I play one on TV, but reading through the counter-complaint it seems to me the only intent is to bully her into shutting up.
Yes: ORS 31.150
However, there is no federal anti-SLAPP law. In the 9th circuit state anti-SLAPP laws apply in cases of supplemental jurisdiction, though, so we are in the the “its complicated” territory.
Thanks for the clarification.
Counter-suing the plaintiff is calculated and strategic intimidation. But then what would you expect from a firm that also represents the Japanese whalers?
http://bit.ly/1BQ3wC8
The countersuit should have read “Dear Rape Victims, we don’t care if you’ve been assaulted and we know that many of you future victims are now not going to report it when you are raped. We need to keep campus crime statistics down so we can assure parents during Duck Days that their daughters are coming to a safe campus that does not tolerate sexual assault. Keep your mouths shut and go cheer for the Ducks.”
“Strategic Communication”
AKA “Lying”.
Seeing as a campus-wide email was the tool chosen by President Coltrane to publicly shame Jane Doe, one wonders why he didn’t see fit to use that same tool to publicize this “Campus Conversation.”
I’m curious if the U of O is going to sue the basketball players involved for the decline in ticket sales for the men’s basketball games.
and people think Coltrane can do this job? that might be standard practice for Joe Sixpack getting sued by a stripper but not for a school punch drunk in the gutter with self inflicted rape culture/bowl of dicks wounds.
Let the clown show continue…..
If it’s true that Park thought the countersuit was a good idea, then he’s surely out of a job come summer. Maybe the next GC will have better judgment.
So…the defense is “I didn’t care enough about who was being sued to bother considering whether this was a person we should be suing, I just took the word of my soulless attorney.”
This is…well, less than deft.
Pursuing a countersuit was probably part of the whole corporatizing mentality that’s permeated the UO leadership. The difference is that everyone expects corporations to be vicious and unscrupulous, but such conduct is unbecoming of a public educational institution that’s supposed to be helping students. Could Coltrane’s decision to revise the response mean this insight is finally sinking in?
I fear it doesn’t mean much more than someone in JH understands bad optics. I think it’s past the time where we hope for convictions to trump cash at JH.
…and slightly more than daft.
Wait. I am confused. Who’s the “good man”? And why does “a good woman’s reputation” seem to have a different meaning entirely?
with excuses like these, Coltrane doesn’t have spine or conviction enough to be a good president
Coltrane doesn’t know how to lead. He just reacts. And only after he’s been bit on the ass.
I’m sure this was all Doug Park considering he likes to make it known that he and he alone advises the president on all legal matters. I for one think Doug Park is bad for our school and needs to go. Paying Doug Park over $200G a year is ludicrous.
Doug Park is the most recent in a succession of GCs who were bad for UO. They’ve all been far more visible than GCs should be, and always for the wrong reasons. Good GCs serve the best interests of their organizations, not the other way around.
Dropping the counterclaim was the only rational response to a pointless, bizarre, sophomoric, damaging miscalculation by the attorneys. Whatever the technical accuracy of the online petition’s phrasing, moreover, the comments of its signers show that the UO appalled the very constituencies it needs not to alienate–from current students and faculty and community members, to alumni and parents of students and prospective students. Was there *anyone* who thought this was a good idea? An ethical response?
I agree that an announcement should have gone out. And the UO’s “updated response” could have gracefully refrained from re-accusing the assault victim. But at least the counterclaim has been dropped.
UO Interim President Scott Coltrane said today that the UO heard from “many different people on campus, and we really wanted to get away from this distraction.”
Coltrane said that the UO never intended to collect fees from the student, but was rather seeking money from her attorneys.
(I’m no legal scholar, but magical money from Jane Doe’s attorneys? This explains the demand for $ to cover the U of O legal fees portion of the countersuit?) Coltrane was able to deliver that schpeal without twitching, while keeping a straight face?
“We didn’t want it to look like we had anything against the student,” he said of the UO dropping the counterclaim. The UO is still asking the court to dismiss the lawsuit and to rule in favor of the university.
*** What the???? Is that the worst & most feeble attempt of an apology you’ve ever heard???
He should have said we don’t want to add undue stress,we have respect for Title IX civil rights, and wish only to allow due process of the law.
Instead, Coltrane’s delivers this insult to injury zinger- “We really wanted to get away from this distraction.”
I propose we agree— get far FAR away, right out of Johnson Hall & off campus. How disrespectful to refer to a sexual assault, rape case, civil rights lawsuit as a distraction.
Get the hook! Interim U of O President Coltrane just failed. Either that, or Coltrane & pals are teaching “Institutional Betrayal 101.
Coltrane does seem to have a knack for making an ungracious apology.
Given more thought, I think it’s safe to say Coltrane & pals are teaching “Institutional Betrayal”- not 101, but the advanced class. The list of things that have been done wrong is long, damaging, and offensive. Have they no clue about the extent of damage they are doing to tarnish the reputation of the U of O? Put down the broom, U of O administration, this “distraction” of student sexual assault/rape will not be swept under the rug.
I agree, and please use a screen name
It’s bad enough that Coltrane has surrounded himself with poor counselors, but he has shown again and again that he’s as tone-deaf as the rest. Millions are being spent on branding, but no amount of branding can whitewash the incredibly unsavvy institutional moves that are being made by Coltrane & Co. Let’s face it: Coltrane simply does not possess the leadership qualities necessary to chart a path forward for the university at this very difficult time. I certainly hope the search committee has someone better in mind.
Lawyers are always out to protect their clients. At some point the client needs to say, “thank you for advice, but we need to go in this other direction.” The problem for the last 2/3 years has been that the presidents don’t understand that they are in charge! The lawyers work for the presidents. Not the other way around. No leadership. And it’s sad; I had high hopes f Coltrane as provost but he’s a disaster as president.
UofO admins, listen carefully and try this – do the right thing. Settle the case out of court, apologize to the girl you so thoughtlessly decided to sue, tell the campus you’re going to do a better job next time and actually do it, quickly establish an office to investigate sexual assault allegations with a dedicated staff that can readily respond to investigate and provide services to victims, provide adequate resources for the staff, and stop trying to take the path of least liability because that has clearly blown up in your faces. hd you done this you would have been heroes instead of the villainous scum who have invited the vitriol you so richly have earned.
Try thinking about what you would want to have happen if this was your kid who was a victim. Throw Doug Park and GC out of your thinking because clearly the lawyers have screwed this up and this whole incident will haunt UofO for years to come because of it. Thanks for nothing GC. Better yet you can scrap GC and PR and start all over. Try being decisive leaders for once, put your big boy and big girl pants on and do something instead of offering these meaningless public discussions where you try to do damage control and patronize people. It doesn’t work. Scripted puppet shows are for 3 year olds.
You want to minimize your liability and protect the UofO brand? Then try doing the right and common sense thing for a change instead of circling the wagons, rolling out the inept PR machine, and stop letting idiots in GC make bad decisions. Try being people for once instead of talking heads directed by legal advice and slack jaw PR tactics that are clearly not working in your favor. UofO comes off and has arguably been inept in the way it responded to this from the start. Stop. Just. Stop.
If they think they can just wave this story away, they’re wrong: http://thebiglead.com/2015/03/03/oregon-accessed-campus-counseling-records-of-victim-allegedly-raped-by-3-basketball-players-to-use-against-her-in-court/
When they accessed those records, regardless of their legal right to do so, they crossed a moral line that pretty much ensured this story was not just going to go away.
Once again, for the tone deaf at JH: Not. Going. Away.: http://deadspin.com/oregon-we-have-the-right-to-access-a-rape-victims-medi-1689196041
The enduring issues in this situation are ethical and practical.
When a person enters therapy they trust that their privacy will be protected. Without that, they are unlikely to disclose their deepest fears, shames, vulnerabilities and so on. Therapy depends upon that trust that privacy will not be violated. This is recognized in every major ethical code in mental health professions and is adherence to these ethical codes is usually required by in state licensing boards.
The legal issues are about invasion of privacy, not whether FERPA does or does not allow something. The plaintiff appeals to the common law right to privacy.
http://privacy.uslegal.com/common-law-right-to-privacy/
The privacy violation complaint in the lawsuit starts on page 16.
“By accessing a copy of Plaintiff’s confidential counseling records without Plaintiff’s authorization, UO intentionally and knowingly intruded upon her private personal affairs.”
“UO’s intrusion would be highly objectionable to a reasonable person.”
http://ia802700.us.archive.org/29/items/gov.uscourts.ord.120035/gov.uscourts.ord.120035.1.0.pdf
Coltrane and Co. are full of administrative bullshit.
A whole year has gone by and he/they are still talking about holding more meetings, adding more staff, defining new programs, doing more surveys and, laughingly, being transparent. Oh, and let’s not forget he’ll now be taken up with cheerleading duties again as basketball post season begins. He is a complete disappointment.
When a patient sues a medical provider for damages allegedly caused by malpractice, then the patient’s records are relevant and useable by the defendant. But that’s not the case here. The plaintiff is not suing the UO regarding the adequacy of care she received by the UO’s counseling services. She alleges the UO created a hostile educational environment by recruiting a dangerous basketball player. Her medical records are irrelevant to the court’s adjudication of this claim. If, and only if, she prevails on the merits, evidence as to the emotional trauma she claims becomes relevant. Seems to me the UO crossed a bridge too far.
Noted elsewhere, “we appreciate that you can see the forest for the trees, perhaps better than most” (noting your resume pages 2 & 3), but this matter does not seem to be in your neck of the woods, so to speak. I doubt this case makes it to federal court, but if it did, it would turn on FERPA definitions of education records, treatment records, and legitimate educational interest, in the context of 34 CFR 99.31(a)(9)(iii)(B) “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.” Dumbing Down noted this above. Your comments about malpractice are also misplaced.
Further, UO Counseling Center is likely not a “covered entity” under HIPAA, unless they recently started billing electronically for health services provided. HIPAA would probably not even be argued.
Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. I am surprised UOM did not post the most recent update in the Chronicle,
http://chronicle.com/article/Just-How-Private-Are-College/228229/?cid=at&utm_source=at&utm_medium=en
…but then I suppose it would not be in keeping with the true purpose of this blog.
Thanks for the thoughtful comment and link, Federal.
It already has made it to federal court. And, no, it doesn’t depend on FERPA definitions, as it is mostly an invasion of privacy case that might morph into a fraud case.
The UO counseling center privacy policy does not allow documents to be provided to other UO officials (including counsel). The plantiff had a reasonable expectation of privacy and sought out care based on material representations of privacy. That is pretty clear cut. FERPA and HIPAA are just additional problems for the UO, and provide a possibility for serious criminal penalties (in the case of HIPAA) for the UO’s officers.
The UO health center by contrast is clearly a covered entity. Thus, this defense depends on the ability to construct a firewall between the different parts of the UO. And that, in a nutshell, is the reason the UOs defense don’t work. 34 CFR 99.31(a)(9)(iii)(B) gives a school an exception to FERPA to transfer “educational records” but it does not let counselors provide those records to the school. That exception also doesn’t apply since therapy records are privileged (see Jaffee v Redmond) and so not “relevant for the educational agency or institution to defend itself” so this does not apply. But, we need to get to the real issue here: the student had a reasonable expectation of privacy. If an independent counseling center had handed over medical records without a court order, that independent provider would be liable. The mere fact that the counseling center is part of the UO can not change the patients expectation of privacy since it is a mere question of ownership of the counterparty.
“Holds” usually happen in place. The duty to put records in a litigation hold is not a duty to access those records or to move them, it is literally the opposite. Also, “putting emotional state at issue” does not let you access therapy records. I know the UO response made this claim. But it is wrong. Sims v Blot established clearly that claims of “garden variety” emotional distress do not constitute an exception to the Jeffree privilege. That was the second circuit, but the case law in the District for Oregon is pretty clear. Quoting Kinnee v Shack Inc:
Federal Litigator misses the forest for the trees. FERPA authorizes only disclosure of medical records “that are relevant for the educational agency or institution to defend itself.”
As I explained above, the victim’s medical records are irrelevant to resolving the merits of plaintiff’s claims. Her claims have nothing to do with her emotional state or the treatment she received, either before or after the rape. The facts relevant to her claims concern what the UO knew when it recruited the basketball player and what steps the UO took to protect students from that danger.
If, and only if, plaintiff prevails on the merits is it conceivable that her medical records become “relevant” to the UO’s defense against her claim for damages.
To Youngin and Stahl,
On August 6, 2014, plaintiff attorney Clune asked that UO secure and produce all documents that relate to the then-pending federal civil rights lawsuit against the UO. Surely you are not debating whether Clune’s request was at the behest of his client? Park did his job, because a lawyer has a duty to pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. It’s called the rule of diligence and it has certainly been personally inconvenient for Park.
On January 8, 2015, plaintiff attorney Middleton repeatedly claims unspecified damages and injuries to her client, seeking relief for “past, present, and future emotional pain and suffering, ongoing and severe emotional anguish, and loss of past, present, and future enjoyment.” This places her emotional state at issue and makes the counseling records relevant to the UO defense, oh, and those would be the records that the plaintiff requested UO to secure and produce some five months earlier. Hopefully, you can appreciate that gang rape is a cause of emotional pain and suffering, severe emotional anguish, and loss of enjoyment.
Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. To that, Park notes the risk of court sanctions.
Consider this HHS – DOE Joint Guidance FAQ:
11. Are all student records maintained by a health clinic run by a postsecondary institution considered “treatment records” under FERPA?
Not all records on eligible students that are maintained by a college- or university-run health clinic are treatment records under FERPA because many such records are not made, maintained, or used only in connection with the treatment of a student. For example, billing records that a college- or
university-run health clinic maintains on a student are “education records” under FERPA, the disclosure of which would require prior written consent from the eligible student unless an exception applies. See 34 CFR § 99.30. In addition, records relating to treatment that are shared with persons other than professionals providing treatment to the student are “education records”
under FERPA. Thus, to the extent a health clinic has shared a student’s treatment information with persons and for purposes other than for treatment, such information is an “education record,” not a treatment record under FERPA.
For more information see http://www2.ed.gov/policy/gen/…
Also, while the filing has “made it to federal court” almost 99% of civil lawsuits settle with nondisclosure and no admission of liability. Admittedly, there is a privacy component to this case, but it is a misreading to describe this as a “mostly and invasion of privacy case that might morph into a fraud case.” Such a characterization truly misrepresents the horror and utter humiliation of gang rape that this young woman claims at the hands of three young men on March 9, 2014. If the purposes of this blog were anything beyond perpetual discrediting of the UO Administration in order to strengthen the position of a Union at the bargaining table, you could see that.
While Federal Litigator appears to be a knowledgeable, coherent expert I would therefore ask what, recently, has the UO Admin done to CREDIT themselves?
Plaintiff’s attorney identified with specificity the UO offices she requested preserve relevant records, i.e., documents related to determining whether the UO violated federal law. Those offices did not include the UO counseling center nor any of the UO’s health care facilities.
Apparently plaintiff’s lawyer is not worried about the UO destroying her client’s confidential counseling records. Nor should she be. Those records are NOT RELEVANT to resolving the legal claims in this case. Federal Litigator simply does not explain how the victim’s counseling records shed light on whether the UO broke the law.
In sum, plaintiff’s “emotional state” is irrelevant to resolving the legal issues in this case, which concern ONLY the UO’s recruitment of the basketball player. Thus, UO’s lawyers do not need any information about plaintiff’s past, present or future “emotional state” to defend their client fully and professionally. IF plaintiff prevails on the merits, the damage she has suffered as a consequence of UO’s violations will be determined by separate motion. At that time, both sides can present evidence relevant to determining the amount of damage and appropriate remedies.
Your persistence is almost as noteworthy as your certainty. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. …but that is not required and I am not aware that this court has made any such rulings. Are you? The judge could order bifurcation of liability and damages, but what makes you think this has already occurred? All we know presently is that the plaintiff has plead UO liability and damages in a complaint that UO answered, then amended. The damage claim includes “emotional pain and suffering, severe emotional anguish, and loss of enjoyment.” That makes the counseling records relevant to this public complaint – she knowingly and voluntarily placed her emotional condition at issue and she has the burden of proof. UO Counseling Center records relating to treatment that are shared with persons other than professionals providing treatment to the student are “education records” under FERPA. Again, she knowingly and voluntarily shared contents of those counseling records with her own attorneys to prepare the lawsuit.
Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. To that, Park notes the risk of court sanctions.
I agree with you on one matter, if and when UO shows that they are not responsible for the poor judgment and egregious conduct of three young men after a basketball game on March 9, 2014, then the damage claim becomes moot. Local citizens need to ask about the inconsistent statements made by the young woman that prompted the local prosecutor to forego filing charges. Perhaps Planet Eugene is soft on crime?
Placing a “hold” is different from accessing the records. Council has publicly stated they messed up bad by grabbing the records without permission pre-litigation. They could have just told the counseling center not to destroy anything, but then again, how in the hell did Council even know that this student was seeing a therapist?
Wisdom is no less a virtue in litigation than persistence. Wisdom counsels restraint by government actors who are vested with powers not enjoyed by average citizens, including the students they serve. Wisdom requires balancing the needs of one’s government employer with the responsibility to serve the beneficiaries of the employer’s educational mission — the students.
A wise government lawyer when faced with choosing between zealous representation of his government employer and violating a bedrock principle of confidentiality for medical files would have found a way of accommodating both objectives. That is the course of action I have suggested should have been taken. The medical files are not relevant to resolving the merits of plaintiff’s legal claims. A wise federal litigator would have let them alone, knowing that if and when they became relevant they were safe-and-sound in the counselor’s office. And, even if, perchance, the counselor’s office were to burn to the ground, the wise federal litigator would know that plaintiff had “voluntarily shared contents of those counseling records with her own attorneys,” making them available for discovery if the UO happened to lose its copy.
Honorable Judge Stahl,
Congratulations on your appointment to the federal bench and assignment to this case. When did you receive a FRCP 42 motion to bifurcate the liability and damages portion of the plaintiff’s complaint and when did you issue that ruling? I do not see it noted in the docket.
Your Honor, please explain how you weigh the “bedrock principle of confidentiality for medical files” maintained by the defendant, against the bedrock principles of attorney client privilege and work product rules in light of the expressed FERPA exception “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.” 34 CFR 99.31(a)(9)(iii)(B).
Your Honor, please help us understand why the US Department of Education and the US Department of Health and Human Services have it wrong when they advise, that “the extent a university health clinic has shared a student’s treatment information with persons and for purposes other than for treatment, such information is an “education record,” not a treatment record under FERPA.”
Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. To that, Park notes the risk of court sanctions.
Park acknowledged he could have done things differently. Truth is, he likely offered a range of options to his client, who decided on one course of action, then reconsidered and asked Park to offer a mea culpa. Wisdom counsels restraint under the rule of law and those rules entitle both the plaintiff and defendant to zealous advocacy and due process. In reviewing this blog further, the interim nature of every key UO administrative appointment reflects mob rule giving rise to arbitrary and capricious action. Comments well above reveal that UO does not seemingly recognize white collar crime when it occurs right in front of them.
the only reason they sought those records was to slut shame the plaintiff; something the UO is famously competent at, especially with Penny Daugherty at the helm.
I’ve heard a lot of complaints about the job performance of AAEO Director Penny Daugherty. Over just about everything, and for years. Even Mike Gottfredson’s hand-picked euphemists on the “Presidential Review Panel” insisted something had to be done about her.
Coltrane hasn’t done anything, of course.
That said, I’ve never heard the slut-shaming complaint before. Please post some specifics – you may not be the only one to have gone through this with her.
I’ve been unfortunate enough to be in a department that is still reeling from the incompetence of Penny Daugherty. Her sole goal as head of AA/EEO seems to be to ensure UO never faces a formal complaint, and when/if they do, to ensure it will in no way be possible to pursue any sort of legal action when said complaint goes wanting.
And that’s to say nothing of how her role as Title IX coordinator might have played into the Jane Doe catastrophe. Sadly, she seems only symptomatic of the moral rot in this administration, rather than the root cause of it.
The incompetence in JH and AA/EEO facilitates growing mole hills into mountains and then working to erode mountains into mole hills when things get out of hand.