The Final Order in regard to the Oregon Board of Psychologist Examiners investigation of Counseling Center Director Shelly Kerr’s decision to comply with UO Deputy General Counsel Doug Park’s request for alleged basketball gang-rape survivor Jane Doe’s confidential counseling records was made today. You can download the thorough report from Oregon Administrative Law Judge Alison Green Webster and the ruling of the OBPE here. Kerr was represented by C. Robert Steringer of HLGR. He lost:
In contrast whistleblowers Karen Stokes and Jennifer Morlok, whose retaliation lawsuit UO just settled for $425K, come off as total professionals.
According to the timeline in Webster’s report, Jane Doe’s attorney John Clune sent Park a “litigation hold” on Aug 5th 2014 to ensure that the records were not destroyed. But Park’s office didn’t ask the Counseling Center for the documents until December 8th, *after* mediation failed. Despite this 4 month gap, and despite the fact that he knew Clune already had a copy of the file (Clune had shown him some excerpts during mediation) Mr. Park maintained that the only reason his office asked for the counseling records was to comply with Clune’s litigation hold and keep the records safe. Some excerpts from Judge Webster (Licensee & Respondent refer to Kerr):
I would generally go with clueless, but in this case I believe it’s more likely that Doug simply did what the Miller Nash attorneys that were actually negotiating with John Clune asked him to do.
Miller Nash probably instigated pulling the records, but Clune had nothing to do with it. If memory serves correctly, Park’s initial story was that under FERPA, UO had the right to access the records, and Park’s reason for doing so was to prepare the University’s “defense,” i.e., the countersuit against Jane Doe. The ridiculous litigation hold explanation wasn’t put out there until the after the countersuit hit the fan.
Kerr keeps her license and doesn’t even have to pay her fine — the University is paying it for her (after getting it cut in half during a closed session with the Psychology Board).
How could this be more fake?
Answer: It could be more fake if the six hours of ethics training she’s required to take also count as part of her required continuing education credits. I’ll bet they do.
After seeing this kind of thing over and over, I’ve become completely resigned to the University’s two cardinal rules for handling its own screwups:
Rule #1: The University is never wrong.
Rule #2: In the event that there is indisputable evidence that the University is wrong, see Rule #1.
The decision by Judge Webster and the OBPE is clear. Taking legal advice from Doug Park is an ethical lapse. Govern yourselves accordingly.
I’m no lawyer, but my read is that it’s only unethical to take the GCO’s advice when the GCO has a conflict of interest.
It’s interesting that the Psychologists ruled it was unethical for Kerr to take Park’s advice, while the Oregon Bar refused to even investigate the question of whether it was unethical for Park to give it – even though he apparently did so without advising Kerr of the obvious COI.
Re Park not advising Kerr of the COI — The GCO represents the interests of the University, not the individual interests of employees. So the take away is that if you are getting that squishy “this might not be right” feeling, go talk to an independent lawyer, not the University’s inhouse GCO or hired guns.