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.

PR request update: NCAA wastes Gottfredson’s time on more sports crap

5/23/2013: UO is on the verge of being kicked out of the AAU.

Meanwhile, the self important pissant jock-sniffers on the NCAA Infractions Committee don’t think the UO President has anything important to do with his time. So they “invite” him to come to their meeting in Indianapolis and explain to their pompous selves what coach Chip Kelly did wrong at UO, years before, and how much UO should now pay for his sins.

OK, I know I’ve bitched about Gottfredson’s $540K salary. But putting up with people like this? Triple it and he’s still underpaid. Assuming, of course, that the athletic department and their boosters are the ones compensating him for this humiliation, and not our students. And for his travel expenses to Indianapolis. And I hope that ticket was first-class.

Full document here. These documents are public only because, after more than a year of O’Fallon trying to hide this expensive disaster from the UO IAC and the press, I found this ruling from Dave Frohnmayer’s DOJ in 1981, stating that NCAA infractions documents were public records in Oregon. 
UO has a Senate committee to deal with athletics issues. The charge is here:

As part of its function and in order to carry out its governance function, the IAC shall be consulted by: …

3. The faculty athletics representative about all ongoing investigations and major violations.

But since UO’s NCAA Faculty Athletics Representative Jim O’Fallon will not even tell the IAC what’s going on, much less consult with us, let’s see what President Gottfredson told the NCAA about UO’s Loss of Institutional Control over our athletic department:

Dear Ms Thornton: 

This is a public records request for a copy of the remarks, notes, or talking points prepared for or presented by President Gottfredson and other UO employees or attorney’s or consultants for the Feb 23 2013 meeting of the NCAA Committee on Infractions in Indianapolis. 

I ask for a fee-waiver on the grounds of public interest. Under our charge the UO Senate IAC should have been briefed on this situation, but Faculty Athletics Representative Jim O’Fallon has told the IAC nothing, and did not even inform the IAC of this meeting. 

I note that the 1981 public records opinion by then Attorney General Dave Frohnmayer’s DOJ makes clear that these sorts of records are subject to disclosure: 

Bill Harbaugh
UO Prof. of Economics

Negotiating for Dummies – foreword by Frohnmayer

5/10/2013: I expected venality from Sharon Rudnick and her HLGR team, but like everyone else I’ve talked to I’ve been surprised by the incompetence. Maybe I shouldn’t have been though, given who wrote the foreword to “Negotiating for Dummies”:
Yup, right at the bottom: David Frohnmayer, President of the University of Oregon, and now “Of Counsel” at HLGR. Dave’s no dummy about deals that involve money for himself though. He’s now working for Randy Geller, as a member of Sharon Rudnick’s legal team. He charges UO ~$270 an hour to help screw over the UO faculty:

while also getting paid a $201,028 salary as UO faculty, at 0.5 FTE:

Plus $257,353 PERS. He set up his sweet retirement deal with Pernsteiner at the same time he was trying to persuade the faculty to take 5% furloughs. That’s leadership for you.

Get your copy from, and try and predict what stupid stunt the UO administration’s bargaining team will try next. Now on Kindle too. (Full disclosure: If you buy it through the link below, I get a small commission which I’ll spend on public records about HLGR.)

Frohnmayer says drug testing rules for Ducks "probably unconstitutional"

Updated 4/23/2013 with link to full Frohnmayer opinion, here.

4/20/2013. New Oregon Administrative Rule 571-004 took effect March 4, 2013. It allows the Duck athletics department to randomly test “student-athletes” for use of illicit drugs, and take away their scholarships if they fail one test:

The program shall also describe potential sanctions for repeated use or abuse of substances for which tests are conducted. However, a student-athlete may be dismissed from the team and lose all athletic financial aid, beginning with the next academic term after a single positive test result.

This policy was pushed through by President Gottfredson this fall, at the instigation of Athletic Director Rob Mullens and with the help of UO General Counsel Randy Geller. But, in a stunning development, former UO President Frohnmayer has stated that random testing violates the 4th amendment prohibition on unreasonable search and seizure. The RG breaks the story:

Wait, the RG story is from 1987, and is about the last time UO tried this. A runner and a wrestler fought back, and got the ACLU and then the Oregon DOJ on their side, and they won.

But that was then. UO’s new random drug testing OAR, with the clause giving the AD the right to cancel a scholarship is now in place, with no objections from Dave Frohnmayer, currently serving as a UO law professor.

How did UO’s General Counsel respond to the people who raised questions this time? He accused President Kyr and the IAC of defamation:

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

Randolph Geller  General CounselUniversity of Oregon 

Frohnmayer takes umbrage, RG calls for PERS transparency

2/3/2013 update. Former UO President Frohnmayer sends the email below, correcting several points on the post below, and giving his opinion on others. The last email I got from Frohnmayer also vaguely threatened a defamation lawsuit, but he dropped that after the state Audits Division told him he really was under investigation. He had to repay UO some money. UO was told to stop writing people retroactive contracts with no job duties. Contracts and audit report here. Here’s Frohnmayer’s latest letter:

From: Dave [email protected]
Subject: UO Matters carelessness
Date: February 3, 2013 7:44:57 PM PST
To: “[email protected]
Cc: Dave FROHNMAYER , Michael Moffitt , David Frank , “[email protected], “[email protected]

Dear Professor Harbaugh:

Your most recent self-styled “rant” (and smear) of January 27, 2013 in UO Matters has just come to my attention. You say:

“We’re paying Dave $100,514 a year for co-teaching 2 small classes on “leadership”….[and] a week long one credit pass/fail course in the law school.”

You both understate and misrepresent my active teaching responsibilities and other duties in my .50 FTE appointment in the University’s Tenure Reduction Plan in this academic year.These responsibilities include:

1). A peer-reviewed and invited 4 unit colloquium for the Clark Honors College, which — as if you did not know this— imposes an enrollment ceiling to maintain high quality standards;

2). A peer-reviewed and invited 4 unit freshman seminar, which also imposes an enrollment ceiling.

My colleague and I always enroll or exceed the maximum to accommodate an invariable waiting list. The student evaluations over many years of these two offerings have been among the strongest in the university in any discipline, both in terms of difficulty and quality.

3). A School of Law J-Term intensive 15-hour 1 unit experimental course in early January that received outstanding student reviews.

4). A 2 unit semester long course on state administrative law this winter and spring that was requested both by students and by School of Law administration.

5). I am instructor of record for a 3 unit semester long course on legislation this winter and spring.

In addition to these responsibilities, on an ongoing basis since my retirement from the presidency, I have performed numerous special assignments for my respective deans, two successive university presidents and numerous other university constituencies.

It is common knowledge that you have secured volumes of documents (at great expense to the university budget) that would easily have revealed the truth of what I relate. Your continuing carelessness seems attributable to malice, negligence or, regrettably, both. Your lack of attention to the most basic norms of a social scientist is a very poor reflection on your academic integrity and competence.

Since you have claimed in the past that you have received academic service credit for your self-styled blog “rants” of this kind, I take the liberty of informing your department and college of this latest example of your behavior.

Dave Frohnmayer

Sent from my iPad

Last year Frohnmayer took umbrage over Oregon Daily Emerald publishing this story about the Oregon SPJ giving me their “First Freedom” Award. Apparently at the insistence of his lawyers, the ODE website later posted a “clarification“:

In the article, we paraphrased UO Matters’ Bill Harbaugh saying “former University president Dave Frohnmayer was proposing pay cuts for faculty and Harbaugh found public records showing he had negotiated a big raise for himself with Chancellor Pernsteiner not long before.” Documents provided to the Emerald indicate that while Frohnmayer did get a raise, it was nine months before he asked the faculty to take cuts and months before a serious economic downturn. 

Additionally, while he was asking staff to take paycuts, Frohnmayer himself took a 7.6 percent paycut, the largest of any administrator.

I’m a little puzzled by Frohnmayer’s math. If you pull the unclassified salary reports at you get this for him:
February 2009: (before furlough scheme)

$225,700 12 months FTE at 100%, president
$18,333 12 month FTE at 100%, chair pay
$20,000 12 month FTE at 100% expense allowance (taken as salary)
$111,627 12 month FTE at 100% supplemental pay
$69,300 12 month FTE at 100% recognition award/stipend
$130,000 12 month FTE at 100% law professor (on leave no pay) 

May 2009: (after furlough scheme)

$225,700 12 months FTE at 92%, president
$18,333 12 month FTE at 100%, chair pay
$20,000 12 month FTE at 100%, expense allowance (taken as salary)
$111,627 12 month FTE at 100%, supplemental pay
$69,300 12 month FTE at 100%, recognition award/stipend
$130,000 12 month FTE at 100% law professor (on leave no pay)  

August 2009 

$245,700 12 months FTE at 100%, president emeritus

So, if you include all the various pots of salary he was getting, he took a furlough cut from $37,080 a month to $35,575, or about 4% per month, for about three months. Call it about 1% for the year. His furlough plea was for faculty and OA’s to take 5% cuts.
I’m also a little confused by Frohnmayer’s dates. He did get one big raise from Pernsteiner in 2008, and that was indeed before the furlough scheme, as his clarification indicates. But his retirement contract also included a very nice raise, however you calculate it. And many other special emoluments as well. 
So, was Frohnmayer really negotiating with Pernsteiner for a nice retirement deal for himself at the same time he was trying to persuade the rest of us to take 5% furlough pay cuts? It sure looks that way to me. His contract is here. The Oregon Audits Division report on it is here. The furlough town hall was 4/14/2009, video of Frohnmayer pitching the furloughs to the faculty and OA’s is here. And here’s an email from OUS chief lawyer Ryan Hagemann, saying Frohnmayer’s contract had not been finalized as of 4/29/2009:
From: “Hagemann, Ryan” <[email protected]>
Subject: Public Records Requests
Date: April 24, 2009 11:16:29 AM PDT
To: “Bill Harbaugh” <[email protected]>

Professor Harbaugh:
I have returned from the road, and am in receipt of your two public records requests.  Generally, you have requested President Frohnmayers post-presidential agreements and the contract, and other agreements, for incoming President Larivere.  For your information, Professor Harbaugh, to my knowledge, neither of these agreements have been finalized.  I have a proposal for your consideration:  if you would be willing to withdraw these two requests, I would be willing, when I receive these finalized agreements in my office, to forward them to you at no cost.  That way, you would not need to make a new public records request; Id just forward to you when I receive. 
Would that work?  If not, I would be more than happy to process your request and get you an acknowledgement letter!
Thanks for your consideration,
R y a n   J a m e s   H a g e m a n n
Legal Counsel & Secretary to the Board
Oregon University System

After I raised questions about the legality of this $245,700 emeritus contract UO renegotiated it according to the standard rues, leaving Frohnmayer at $201K with an 0.5 FTE and with fully specified teaching and research responsibilities. Saved UO a good $145K, that did. Contracts here.

1/27/2013. It’s starting to seem like a movement. They even call out Frohnmayer, when discussing Kitzhaber’s plans to cap the COLA:

A number of prominent Oregonians found themselves the subjects of unwanted attention when Kroger raised the curtain two years ago. Among them was former University of Oregon athletic director Mike Bellotti, who received the biggest PERS pension of them all — $41,342 a month. No. 4 on the list was Steve Goldschmidt, who represented the Eugene School District during a 1987 teachers’ strike, whose monthly check was $21,517. Former UO President Dave Frohnmayer came in at No. 5, with $21,207.

From what I can tell from the UO salary data, we’re also paying Dave $100,514 a year for co-teaching 2 small classes on “leadership”, with his former special assistant Barbara West – not sure what she gets. Also can’t find any evidence that the Senate Curriculum Committee ever approved his courses. He also teaches a week long one credit pass/fail course in the law school – so he’s a “law professor” when he’s out soliciting clients for HLGR. To top it off he got a lot of deferred compensation from UO, so the PERS number is an underreport of his total state paid retirement income. Contracts here. OK, I’m done with this rant for a while, sorry.

Randy Geller hires a competent lawyer

to defend UO against the Emeldi lawsuit, and try and take it to the SCOTUS. Seems like a good idea, and it’s not Frohnmayer or Rudnick. Diane Dietz RG has the story in the RG. Bio here. 1/21/2013.

In other UO legal news, Randy’s website is down. Last time this happened it involved his GC Emerita Melinda Grier, and an apology to the Oregon DOJ.

Coach sues NCAA for libel over infractions report. O’Fallon to sue UO Matters next?

12/4/2012: It takes a heavy hand to enforce the NCAA’s rules against letting college football players get any of the fruits of their labor. UO’s Faculty Athletics Representative Jim O’Fallon sits on the NCAA Infractions Committee that wields the lash – and he was lucky he recused himself from this particular case. The assistant coach they went after is now fighting back with a defamation lawsuit that seems likely to expose some of that committee’s sleazier practices. Joe Nocera has the story in the NYT.

This post (or perhaps these photos) have provoked a response from a noted UO law professor. I asked him about rumored threats of a defamation lawsuit from him, and got this:

Not sure what the rumor says. I have commented to some people that I am tired of your defamatory remarks and wondered how you would respond if confronted by the need to defend a lawsuit. Defamation claims can extend to any publication. …

James M. O’Fallon
Frank Nash Professor of Law, Emeritus
Faculty Athletics Representative
University of Oregon

A bit later:

[ ] Please remove all references to me from the UO Matters website. JMO

James M. O’Fallon
Frank Nash Professor of Law, Emeritus
Faculty Athletics Representative
University of Oregon
School of Law
Phone 541.346.3830

Before he started shilling for the NCAA O’Fallon’s area of expertise was apparently the First Amendment. Of course. So why should I remove your name from a public forum discussing matters of public importance, Professor O’Fallon?

I’ll let you figure that out.

James M. O’Fallon
Frank Nash Professor of Law, Emeritus
Faculty Athletics Representative
University of Oregon
School of Law
Phone 541.346.3830

Any ideas, readers?

Randy Geller takes charge

I’m guessing the exchange below has something to do with AD Rob Mullens’s efforts to start random drug testing of UO’s “student athletes”, and the efforts by the Senate to make him run that policy and change in UO’s OAR’s through the UO Senate first. Instead of resolving this by meeting with the Senate and talking it over, Geller just lays down the law. At least this time he’s not accusing President Kyr and the IAC of defamation:

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

Randolph Geller  

General Counsel
University of Oregon

From: Randy Geller <[email protected]>

Date: Mon, Aug 20, 2012 at 4:08 PM
Subject: RE: proposal to resolve our differences regarding the definition of “academic matters”
To: Nathan Tublitz <[email protected]>
Cc: Rob Mullens <[email protected]>, …, Robert Kyr <[email protected]>

Dear Nathan,

Thank you for your follow up.

ORS 351.011 renders the Oregon University System ineligible to request
or receive legal services from the Attorney General and the Department
of Justice. This language was added by the Legislative Assembly at the
request of former Attorney General John Kroger. Under Board of Higher
Education policy, an OUS institution may receive legal representation,
services, and opinions only from attorneys authorized to provide legal
services to the institution. Legal advice and opinions rendered by
anyone other than an attorney authorized to provide legal services to
an OUS institution are ineffective. No director, officer, employee
(faculty members are employees) or authorized representative of the
University may request a legal opinion or seek legal advice from the
Oregon Attorney General or the Oregon Department of Justice. I have
attached the Board policy for your information.

ORS 351.070, 352.004, and 352.010 and Board IMDs and policies are
clear and unambiguous with regard to the respective roles of the
president and the faculty (faculty is defined as the “president and
professors”) in matters pertaining to intercollegiate athletics. I am
certain that President Gottfredson will want to provide for a strong,
appropriate role for faculty in matters pertaining to intercollegiate
athletics and ensure that the faculty’s role is discharged properly.
He knows that faculty involvement is essential under the NCAA
governance structure. I know that Rob Mullens shares this view.



—–Original Message—–
From: Nathan Tublitz [mailto:[email protected]]
Sent: Wednesday, August 01, 2012 1:42 AM
To: Randy Geller
Subject: proposal to resolve our differences regarding the definition of “academic matters”

Dear Randy:

Thanks for your note and clarifications. Our recent email
discussions, which I greatly appreciate, demonstrate a clear
difference of opinion regarding the role of faculty and our
governance system in governing the University and what constitutes
academic matters. For the record, I do not believe that the phrase
“academic matters” encompassing every aspect of the University.
However it is clear that my definition of “academic matters” is
broader than yours. That said, we both provide only advice to the
University President and do not make policy decisions. So perhaps the
best approach to resolving this difference is to refer the matter to
the Oregon Department of Justice who would issue a ruling on the
breadth of ORS352.010 (and how it interacts with other ORSs and IMDs)
after receiving briefs from all interested parties. Such a ruling
would resolve our differences and allow our governance system to
interact with the administration more efficiently and more
effectively. I suggest therefore that the new University President
and the current University Senate President write a joint letter to
the Oregon DoJ requesting such a ruling. How does that sound to you?

I appreciate your thoughtful discussions and hope we can find a way
to resolve our differences.



Frohnmayer threatens defamation suit

6/9/2011: UO Matters has put up a few posts about the SOS Audit Division investigation of UO President Emeritus Dave Frohnmayer’s peculiar golden parachute contracts with OUS and UO. Now he’s threatening us with a defamation lawsuit and “a claim for punitive damages.”

From: “Dave Frohnmayer”
Date: June 8, 2011 3:16:49 PM PDT
To: (Professor X)

Subject: Re: public records request, Frohnmayer, Grier contracts and job descriptions

Dear Professor X and Colleagues: A cursory call to the Oregon Secretary of State confirms that the Audits Division is NOT “currently investigating” my contractual arrangements. Professor X’s  assertion, as he has communicated it, is actionable as defamation per se, and in view of his  course of conduct in recent years, likely subject to proof of actual malice that could justify a claim for punitive damages. Dave Frohnmayer

Sent from my iPhone

Dave’s an awesome texter, for an old guy. I’d have cooled off and thought better of sending this before I’d pecked out half as much spittle.

Update: In fairness to Frohnmayer, from what I’ve been able to piece together on this so far it appears the Audit Division had not told him they were looking into his contracts. They also apparently hadn’t told Secretary of State Kate Brown. So, presumably, when Dave called her she said something like “I’ve never heard of this” and he ran with that.

An honest mistake, and UO Matters has no plans to seek punitive damages from Professor Frohnmayer, despite his course of conduct in recent years. We just want him to explain his special retirement and sabbatical deals, and repay the retroactive summer salary Russ gave him.