Thursday, September 25, 2008

Which Would be Worse?

September 25, 2008, 6:40 a.m., 9:50 a.m. (Regents' videotaped session), 11:25 a.m. (Athletic Department's lying basketball ads), 11:45 a.m (Mason's pay raise)

Related:
"Scapegoat Bites Back," September 24, 2008
"Got Questions?" September 23, 2008
"Rational Responses to Stolar and Global Finance" (includes "The Case for Mills and Jones"), September 20, 2008
"Extra: Stolar Report," September 18, 19, 2008
And, of course, the monster collection of material in Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present

Which Would be Worse?

[9:50 a.m.. Brief, early report on Regents' meeting consideration of Stolar Report, just concluded (as the Board went into closed session, as predicted, for the final session evaluating the performance of President Sally Mason with regard to those events): As predicted, Mason began with an apology, following which no criticism was leveled at Mason. The Board approved a resolution essentially adopting the proposals of the Stolar firm. Discussion of whether the crime of rape should always be reported to the police by UI officials (as distinguished from the alleged victim being required to press charges) was postponed. The athletic department was proclaimed to be exemplary. The Gazette's running blog/textual notes of meeting are posted. Here's the Register's early report of the session: Lee Rood, "U of I president to regents: We'll do better," Des Moines Register, September 25, 2008; and "Mason Apologizes to Alleged Victim, Family," Iowa City Press-Citizen, September 25, 2008.

11:45 a.m. Mason's Pay Raise: The Regents, as predicted, held UI President Mason's base pay steady, while giving her more money, thereby assuring headlines like the Press-Citizen's: "Mason Gets No Raise in Base Pay," Iowa City Press-Citizen, September 25, 2008. How does that work? Well, the base pay is a mere $450,000 a year. Given the high cost of living in Iowa City, where a football coach needs at least $2-4 million a year to survive, the University president requires both an additional "deferred compensation" package of $60,000 a year (more that a good many university employees get for their "entire compensation" package), plus an "incentive package." Although an incentive to what has never been defined by the Board, she was awarded the $50,000 for the first year automatically -- so we have to presume the way she handled the sexual assault was a part of what the Regents were trying to provide an incentive for her to do. Moreover, although the Board has still left undefined what it will be paid for, the incentive has nonetheless been increased from $50,000 to $80,000 a year -- on top of the $60,000, on top of the $450,000. Never mentioned, as is the usual practice with public disclosure of the pay packages of CEOs in the top 1% of the nation's wage earners, are such things as the value of the free housing in one of Iowa City's grandest homes, car and other travel allowances, additional expense accounts, retirement, health and other benefit packages, and so forth.]

So, what happened yesterday? Oh, not much, just . . .

o UI Vice President Phil Jones -- a 40-year employee who was planning on retiring next spring anyway, and was peremptorily fired Tuesday -- is appealing that decision to the Board of Regents as "wrongful termination," and released through his lawyers a statement of the reasons why, e.g., "It is indeed ironic that Phillip E. Jones is being terminated and criticized for failing to act when the university's athletic department was doing everything in its power to keep this matter 'informal' and prevent the dean from acting on a formal complaint based on an EOD investigation."

o The letters from President Mason to Jones, his lawyers' letter to the Board of Regents, along with a number of attachments, are now available online.

o "Sheldon Steinbach, a Washington, D.C., lawyer and former general counsel for the American Council on Education, said he had read the Stolar report and believes Jones and Mills were scapegoats, fired to protect Mason's job and to move on from the controversial story. . . . Steinbach said he believes the university has exposed itself to wrongful-termination lawsuits."

o UI General Counsel Marc Mills -- a 20-year employee who was also fired Tuesday, and who sent a 10-page letter of protest to the UI president and Regents -- has now hired his own lawyer.

o James Bryant, the Stolar lead investigator, has been thrown into defensive mode as he endeavors to respond to Marc Mills' criticisms of the firm's Stolar Report.

o The University, and the Board of Regents, are both refusing to release a copy of the Mills' letter to the media notwithstanding the media lawyers' assertion it is a "public record" under Iowa law that cannot legally be withheld and that "Mills said Wednesday that when he sent the memo he gave permission for it to be made public."

o Mark Schantz, a former UI General Counsel (1992-2005), says Mills was "thrown under the bus."

Schantz said he is upset about how Mills was treated and called the Stolar report "quite wrong" in some places and that some omissions with regards to Mills testimony were made consciously. Schantz particularly had issue with the rapid terminations. . . .

"This is not the way the university usually proceeds. I haven't heard of anyone being summarily dismissed short of a felony without at least telling their side of the story."
o Former law school dean Bill Hines is quoted as saying that for President Mason to peremptorily fire two long-term employees three business days after the Stolar Report appeared, for "an episode that began last year . . . seems like an almost indecent speed to find someone to blame things on."

o Meanwhile, before resolving any of the above, the Regents are going ahead with their special meeting today to review the University's response to the Stolar Report, and to conclude this portion of their review of President Sally Mason's first year on the job. (It should be available in streaming video from the Des Moines Register and The Gazette sites -- unless, of course, the Regents insist on closing the meeting to the media and taxpayers, as is a possibility.)

o A blockbuster buried in Brian Morelli's story is "I believe the decision was made by the regents, at least in the case of some, before they even saw the report," he [Mark Schantz] said." Of course, I cannot know (a) if Schantz said that (he's certainly never said it in my presence), or (b) if his assertion is true. How could I know? But neither do I have any reason for believing that it's not true. And it is confirmed in some ways by former UI interim President Gary Fethke, who supports President Mason's firing of Jones and Mills:

"I don't know there was any other alternative at this point," Fethke said. "I think she made the choice she had to make at this point. . . .

I think she had to go to the meeting with something, a credible and forceful response," he said. "Either she makes the decisions or they will be made by someone else."
"I believe the decision was made by the regents." "Either she makes the decisions or they will be made by someone else."

Source for quotes: Brian Morelli, "Jones appeals to Board of Regents; Says AD officials tried to keep assault allegations informal," Iowa City Press-Citizen, September 25, 2008, p. A1.

And see, Editorial, "More Questions to Answer, More Policies to Fix," Iowa City Press-Citizen, September 25, 2008, p. A9 ("Suddenly, rather that having faith in the Stolar report's conclusions, we're experiencing a new round of he said/she said.");

Lee Rood and Erin Jordan, "New lawsuit, firings face Mason amid work review," Des Moines Register, September 25, 2008 ("Sheldon Steinbach, a Washington, D.C., lawyer and former general counsel for the American Council on Education, said he had read the Stolar report and believes Jones and Mills were scapegoats, fired to protect Mason's job and to move on from the controversial story. 'In the heat of passion, with the spotlights of the media and public on you, the easiest thing to do is fire somebody,' Steinbach said. 'It's a desire to smooth the water and get off the front page of the newspaper. That's all fine except for the people summarily executed.' Steinbach said he believes the university has exposed itself to wrongful-termination lawsuits.").

Commentary: Which Would be Worse?

Why do I say those quotes from Schantz and Fethke constitute a blockbuster?

One of the biggest, and so far largely unaddressed, issues in all of this is yet another "which would be worse?" dilemma.

Earlier, in Nicholas Johson, "Rational Responses to Stolar and Global Finance," September 20, 2008, I wrote "Would it be worse that neither the University president, nor anyone else in administrative positions, has thought to review its organizational structure and procedures for handling football players' sexual assaults over the past six years? Or would it be worse that a review was conducted during President Mason's first year in office but no one thought of any of the obvious remedies proposed by Stolar?"

Now we have another.


Was President Sally Mason, in effect, ordered by one or more members of the Board of Regents to fire Marc Mills and Phil Jones? If so, that would of course raise all kinds of governance questions about the propriety of the Board intervening in that way, questions I've written about so often and at such length that I'm not even going to provide the links to those discussions once again. [Credit: Bob Patton, "Regents Adjust UI Half-Staff Policy" (with "Administration Credibility" flag at half-staff), posted September 26, 2008, and Iowa City Press Citizen.]

But put those serious concerns aside for a moment and focus on President Mason.

Let me preface this discussion by noting that my former beloved University of Texas Law School Dean, Page Keeton, made quite a reputation for himself standing up to a very tough Board of Regents, threatening to resign over matters of principle when he thought they'd stepped over the line. He never had to resign.

Now let us consider which would be worse: (1) That President Mason, after one year on the job, personally and unilaterally chose to peremptorily fire two University vice presidents with more than 60 years service to the university between them -- over a matter that has far more to do with the University's organizational structure and procedures (and football culture) than the behavior of any given individual (as even the Stolar Report concedes) -- or that, (2) being inappropriately told to do so by the Regents, she simply "followed orders" and took actions she knew to be wrong and did not personally support, rather than standing up to the Regents and threatening to resign if they persisted?

As Senator Joe Biden said in Iowa City during the primary season, "There are some things worth losing elections over." Well, there are some things worth losing one's job over. This may very well be one.

Permit me to note that I have not joined the chorus of those suggesting that firings are the answer to this -- firing some regents, the UI president, the football coach. I haven't suggested anyone be fired.

But I would note that a common response of those who defend the firing of Mills and Jones in the face of the assertions of others that this is not the way we handle such things (e.g., Mark Schantz, above: "I haven't heard of anyone being summarily dismissed short of a felony") is to cite cases of firings at other universities.

For example, The Gazette concludes its story this morning,

The Chronicle of Higher Education has reported in recent years on such situations at other universities. The University of Colorado at Boulder eventually lost its athletics director, football coach and President Elizabeth Hoffman — now the provost at Iowa State University — after two women claimed they were gang raped by football players and recruits at a 2001 party.

And Eastern Michigan University lost three leaders, including the president, over the handling of a rape and murder of a student in 2006.
Diane Heldt and Erika Binegar, "Former Dean Says He Was Wrongfully Fired," The Gazette, September 25, 2008, p. A1, available as earlier online version, "UI Official Says He Was Wrongfully Fired," September 24, 2008, updated 11:46 p.m.

I would simply note that at least in each of these two cited cases the university president was also fired. (And see the comments of Sheldon Steinbach quoted in the Register's story by Rood and Jordan, above.)

Iowa Athletic Department's Lying Basketball Ads

. . . And there's more to this blog entry, because the Athletic Department has been ruled out of bounds once again in a major way with regard to a series of decisions totally unrelated to this mess. Having been found by Stolar and the Regents to have behaved in an exemplary fashion when handling football players charged with sexual assault, it's now time to move on to the next allegation.

The UI Athletic Department, has long since decided to give the NCAA a poke in the eye with a sharp stick and continue the football program's ties to organized gambling by advertising to students and fans a local gambling casino on its enormous scoreboard at the Kinnick football stadium. Meanwhile the casino's customers are offered a shuttle service to and from the stadium from the casino, and its high rollers' package deal also includes game seats in a luxury Kinnick skybox where alcohol is served in an otherwise-dry stadium. (The Athletic Department's see-through justification for the ad promoting gambling is that because they do not use the word "casino" the ad isn't really promoting gambling -- as if any Iowan seeing that ad would fail to recognize that it was an ad for the well-known Riverside gambling casino. The actual corporate name, and Web site, is the "Riverside Casino & Golf Resort." )

Now this academic department that represents it's engaged in "character building" has decided that, as an alternative to actually winning basketball games, an easier alternative is simply to lie in its advertising in order to sell tickets.

Iowa's first full-page ad showed Hawkeye forward Jarryd Cole dunking the ball, claiming Cole's dunk brought the Ohio State Buckeyes to their knees and brought a sellout crowd to its feet. The problem is that Cole did not play against OSU last year.

Iowa's second full-page ad featured a picture of Hawkeye guard Jeff Peterson, claiming his steal against Illinois sparked a 14-0 run. There's a problem with that one, too. Peterson played against Illinois but was not credited with a steal, and Iowa never had a 14-0 run.

Rick Klatt, the director of Iowa's marketing department and an associate athletic director, told The Gazette that neither ad was a mistake. He said the ads are fictional examples of how "slam dunk" and "steal" can be used in a sentence. . . .

Steven Helle, a journalism professor at Illinois and an Iowa grad himself, sent an e-mail to Iowa President Sally Mason to complain about the ads. . . .

"To defend a slam-dunk that never happened not only as not a mistake but merely as 'an example of how the word 'slam-dunk' could be used in a sentence' turned my stomach. He added disingenuousness to prevarication." . . .

Bourne Morris, a journalism professor at Nevada, had similar thoughts. He teaches advertising and media ethics and spent 25 years in advertising in New York and Los Angeles.

"Writing a false story in an ad injures the credibility of the Iowa sports program and may make folks wonder what other bits of 'information' they made up, or might make up, just to sell tickets," he wrote in his e-mail to The Gazette. . . .

Sam Becker . . . served as chairman of the department of communications studies, wrote six textbooks and is the Samuel L. Becker whose name appears on the Communications Studies Building at Iowa. "I think it's a mistake to mislead people," he told The Gazette, referring specifically to the ads. He does not agree with Klatt's explanation. "I think he's wrong. I think especially at a university they should be truthful," Becker said.
Jim Ecker, "College professors slam Iowa's basketball ad," Gazette Online, September 24, 2008, 9:53 p.m.; hardcopy version as "College Professors Slam Iowa's Basketball Ad," The Gazette, September 25, 2008, p. C3.

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7 comments:

Anonymous said...

I don't know how anyone who read the report wouldn't think that Jones was soon to be gone. Assuming the report is accurate, Jones had his chance to present his side of the story there, and chose not to

Anonymous said...

why is the athletic dept being left out of all the discussions? Is their "informal" meetings with the victim and parents off limits?
love your blog and insight

John Barleykorn said...

The decision to hold a closed hearing for Sally Mason's evaluation is Sally Masons, not the Board of Regents.

Any time you are having an interview or evaluation before a body subject to the open meetings law it is the decision of the person being interviewed or evaluated to hold that meeting closed or open. They have to sign off on it. The body can refuse to go into closed session, but they can't go into closed session without that consent.

Anonymous said...

It is ironic that Hoffman left Colorado and came to ISU, which is a Regents institution, as Provost. The Regents are certainly sending a message, if only they knew what it was.

How did Mason line up replacements for Jones and Mills so quickly, if she only made the decision with the release of the Stolar report? In Jones's case it's not that hard to imagine. Rocklin is already in the university, aware of the issues, and ready to hit the ground running. But Mills's replacement is an outsider. It is a little bit harder to imagine Mason lining her up on such short notice, had she (with or without the advice of others) not already been contemplating this for some time.

One more thing-- the whole justification for firing-- "I lost trust in them." Interesting phrase. Doesn't really mean anything, so no work to defend it. I wonder how many in the UI community have now lost trust in Mason. Possibly more than she can afford to fire.

Anonymous said...

I have no opinion one way or another on these matters, but I would like to comment on some issues of fact --

"The athletic department was proclaimed to be exemplary." -- I did not hear the word or insinuation that athletics was proclaimed "exemplary." I believe the report acknowledges athletics' mistakes, and the Regents said they followed a flawed process.

"Although an incentive to what has never been defined by the Board, she was awarded the $50,000 for the first year automatically -- so we have to presume the way she handled the sexual assault was a part of what the Regents were trying to provide an incentive for her to do. Moreover, although the Board has still left undefined what it will be paid for, the incentive has nonetheless been increased from $50,000 to $80,000 a year.." The incentive was defined in Mason's contract and defined again today--it is based on specific performance goals that are agreed upon between Mason and the Regents and the fulfillment (or lack of) of those goals. I don't think those goals are made public as personnel matters, but to say the reason for the incentive is undefined is incorrect. Her first-year incentive was guaranteed regardless, so I don't understand what you mean by your presumption that the payment had something to do with her handling of the sexual assault. That makes no sense.

Schantz: "I believe the decision was made by the regents, at least in the case of some, before they even saw the report." As far as I can see, Schantz has no grounding or reason to say this. How would he have any clue or idea? He has absolutely no connection to this investigation. For you to say that you have no reason to disbelieve him, either, is entirely illogical. If someone tells me he was abducted by aliens, I have no reason to disbelieve him--except that the statement is preposterous.

"This is not the way the university usually proceeds. I haven't heard of anyone being summarily dismissed short of a felony without at least telling their side of the story." Mary Gilchrist?

Posters' comments--

"why is the athletic dept being left out of all the discussions? Is their "informal" meetings with the victim and parents off limits?"--Did you read the report? These issues are discussion.

"How did Mason line up replacements for Jones and Mills so quickly, if she only made the decision with the release of the Stolar report? ...But Mills's replacement is an outsider. It is a little bit harder to imagine Mason lining her up on such short notice, had she (with or without the advice of others) not already been contemplating this for some time." Carroll Reasoner--and this has been reported in the press--is very familiar to the UI. She has been on the Board of Directors of the UI Foundation and chaired its executive committee for several years. It is not at ALL hard to believe that if you suddenly needed an interim general counsel, her name would pop to mind. She has been highly active and visible in the UI Foundation.

"I lost trust in them." Interesting phrase. Doesn't really mean anything, so no work to defend it."--If you read the report and you believe the specific descriptions of actions are true, it is not at all hard to know what "losing trust" means based on those actions, and the statement is entirely defensible based on those actions.

Anonymous said...

Sorry, one more--

"I wrote "Would it be worse that neither the University president, nor anyone else in administrative positions, has thought to review its organizational structure and procedures for handling football players' sexual assaults over the past six years? ." -- The sexual assault procedures that the University followed were put into place somewhere around 2004-2005 during Skorton's tenure. They were the result of the university reviewing their procedures in the wake of Pierre Pierce. If my memory serves me, there was a task force to develop new procedures. Those are the procedures the university followed this time.

Anonymous said...

I want to bring it to your attention that the Daily Iowan has been censored. For detail, please see: http://media.www.dailyiowan.com/media/storage/paper599/news/2008/09/26/Metro/Regent.No.2nd.Thoughts-3455331.shtml

Clearly, Daily Iowan selectively blocked the commenting feature on some of the headline stories related to the assault. In addition, it removed some comments reader made.

It is not clear, however, why the Daily Iowan is doing this. One possibility is the newspaper is imposing self-censorship. The other is it is told to censor readers' comments. I must add a majority of comments ask for Sally Mason's removal.

Whether the DI is self-censoring, or worse, it was order to do so, this is a violation of one of the basic principles, possibly the most important one, of our society. Freedom of speech is at the core here.

Regardless of how the incidents were handled and who was at fault, any attack on freedom of speech needs to be dealt with with all seriousness and INDEPENDENT of the assault incident itself. If Sally Mason is connected to the DI censorship in any way, she has to go. If DI is self censoring, then the DI editorial board needs to go.