October 6, 2008, 7:45 a.m., 11:30 a.m. (addition of relevant links)
Conflicts About Conflicts of Interest
While the world evaluates our $1.3 trillion transfer of wealth from the middle class to the wealthy -- (along with the law's built-in earmarks for rum and wooden arrow heads) by depressing the value of global stock exchanges by about 5% (and trillions of dollars), we learn there are over 750,000 Americans who lost their jobs so far this year, 80% of Americans think they will be adversely affected economically, the British and American generals are telling us there cannot be a military "victory" in Afghanistan, voters watched the vice presidential candidates' debate like NASCAR fans watching for a crash that never happens
-- meanwhile, Marc Mills remains in the news with the petition for his reinstatement and two Iowa City lawyers duking it out over Stolar's charges of Mills' "conflict of interest."
Brian Morelli, "Faculty Circulating Petition to Reinstate Mills," Iowa City Press-Citizen, September 30, 2008, 4:23 p.m.
David Roston, "Pinpointing Mills' conflict of interest," Iowa City Press-Citizen, September 27, 2008
Mark Schantz, "Refuting Mills' 'conflict of interest,'" Iowa City Press-Citizen, October 4, 2008.
David Roston is the former chairman of the Chicago Bar Association Committee on Professional Responsibility. Mark Schantz was the University of Iowa's general counsel from 1992 to 2005.
David Roston wrote, "His [Marc Mills] responsibility was to protect the legal interests of the AD [Athletic Director/Department] and the university by assuring compliance with law and insulating it from liability. If Mills had made that responsibility clear to the student-athlete and her family, they would have known right off the bat that he was not going to protect their interests in this matter and that they should not rely on his help."
Mark Schantz responds, "Roston indicates that an attorney for the university should, when speaking with persons such as the student athlete's father, advise them that he is the university's attorney, not theirs. Mills did so, a fact about which there appears to be no dispute. Insofar as Roston implies otherwise, he is mistaken."
Roston charges, "Mills' failure to advise the Iowa state Board of Regents of the letter from the student-athlete's mother is analogous to the general counsel of a corporation failing to advise its board of directors of facts concerning an issue which it has decided to investigate. . . . The regents were his client, and it appears that he failed to provide them with important information because he thought that he had an obligation to the student-athlete and her family."
Schantz responds,
"[I]n the eyes of Iowa law, the Board of Regents exists separate and apart from the universities it governs. Chapter 13 of the Iowa Code makes completely clear that the attorney general of Iowa is the regents' lawyer. The board, therefore, is not the "client" of the university general counsel.
In the 13 years I served as university counsel, I recall no occasion when the board considered me to be its lawyer. . . .
Once it is understood that the regents were not Mills' client, the matter of whether and by whom the regents should have been advised concerning the critical letters from the student-athlete's mother takes on quite different coloration.
The Iowa Code is quite clear that the regents govern the institution by and through the president of each university. As a practical matter, the president directs regents communication downward to university officers and communication from university officers upward to the regents. I would not have made any official communications to the Board of Regents without the president's knowledge and approval. Nor, I am sure, did Marc Mills.
Roston also charges, "His [Mills'] responsibility was to protect the legal interests of the . . . university by assuring compliance with law and insulating it from liability."
Schantz responds,
Roston's final error, which also is reflected in the Stolar Report, is his misconception that the sole function of university counsel is to "insulate (the University) from liability."
University policies, however, reflect a variety of university interests, often described in rather general language, and university lawyers regularly are involved in trying to reconcile or balance the different interests reflected in those policies.
The university wishes, for example, to encourage victims of sexual assault to report such events and . . . also wishes to ensure that students accused of sexual assault are provided a fair hearing . . .. Balancing those competing interests is part of a lawyer's job, and it is not primarily about preventing liability. The fact that a large entity frequently pursues different interests does not mean its lawyer has a "conflict."
I cannot know, and won't speculate, why David Roston would have written what he did. From my own perspective, Mark Schantz clearly has the more persuasive analysis.
But this is more than just a "he-said-he-said."
As Schantz concludes, "Accusing an Iowa lawyer of 'conflict of interest' is to accuse one of violations of the Iowa Rules of Professional Responsibility. Such allegations are defamatory and actionable if false, as I believe I have shown they are, with respect to Marc Mills."
Links to Related Documents
Marc Mills
Stolar Partnership, "Special Counsel's Report [The Stolar Report], State of Iowa Board of Regents, University of Iowa Internal Investigation," September 18, 2008 (a pdf file):
"[T]he General Counsel's involvement as liaison for an alleged victim of sexual assault is improper, given the perceived (if not apparent) conflict of interest with the General Counsel acting in such a capacity." p. 12.
"Marcus Mills’ involvement in micromanaging the University’s response to the
incident presented a serious conflict of interest." p. 60.
"The role of the University’s General Counsel is to represent the University and its
Executive Officers, Administrators, Faculty and Staff, all in their official capacities. As legal counsel for the University, there is a substantial appearance of a conflict of interest if such counsel is dealing with an unrepresented complainant." pp. 60-61.
"The Office of the General Counsel should never have assumed a supervisory role
in the investigation of the incident. To do so was an inherent conflict of interest." p. 72.
_______________
Marc Mills, "Response of the General Counsel to The Stolar Report," September 23, 2008, see generally pp. 2-3, "Conflict of Interest":
"The Report does not cite the applicable rule [Iowa Court Rule 32], much less identify any specific provisions violated by Mr. Mills.
"[A] conflict of interest does not arise merely from communication between a lawyer and an unrepresented party, even a potentially adverse party. Indeed, the conflict of interest provisions of Rule 32 do not apply in such situations."
"Lawyers in these situations are guided by Rule 32:4.3, 'Dealing with Unrepresented Person.' ("In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. . . .").
"The facts indicate that Mr. Mills acted wholly and appropriately within the bounds of Rule 32:4.3 in his dealings with the father. At no time did Mr. Mills suggest or otherwise give the impression that he was disinterested. . . . The father never indicated to Mr. Mills that he misunderstood Mr. Mills' role and Mr. Mills never gave legal advice to the father. [Thus, he] did not violate either the letter or the spirit of the applicable ethical rule."
Links to Prior Blog Entries
The most extensive collection of material: Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present
"Sex and Finance," September 30, 2008.
"Cleaning Up After the Party," September 26, 27, 2008 (includes link to Mills' response to Stolar Report)
"Which Would be Worse?" September 25, 2008
"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 (includes liink to Stolar Report)
Global Finance
"Better Alternatives to Congress' Bailout Plan," October 2, 2008.
"Sex and Finance," September 30, 2008.
"Alternatives to 'The Plan,'" September 28, 2008.
"Global Finance: The Great Fountain Pen Robbery," September 21, 2008.
"How Much Do You Owe the Chinese?" September 6, 8, 2008.
# # #
October 1, 2008, 9:30 a.m., 1:00 p.m. (addition of report on Mike Hogan's accomplishments at UConn)
Mike Hogan is Alive and Very, Very Well
Mike Hogan is back in the news, and "in the hearts of his countrymen (and women)," at the same time a petition is being passed from UI faculty member to faculty member urging the reinstatement of former General Counsel Marc Mills. Brian Morelli, "UI professor petitioning to reinstate Mills," Iowa City Press-Citizen, October 1, 2008, p. A1; Amanda McClure and Kelli Shaffner, "Petition to reinstate Mills garners support from UI community" [in this morning's hard copy edition as "Mills Firing Irks Many"], The Daily Iowan, October 1, 2008, p. A1.
Mills, the University's former general counsel, was unceremoniously and peremptorily fired for . . . for . . . what exactly was he fired for? That's part of the problem. No one of us can look back on all of our actions and say there is absolutely nothing during our lifetimes that we might have done differently. But, at a minimum, it's hard to read his lengthy response to the Stolar Report's charges, and his explanation of his role (or absence of role) during the UI's handling of an alleged sexual assault last October 14 and find anything he did (alone or taken together) that would warrant such precipitous action. (And there has, of course, been no effort to show a pattern of mis-, mal- or nonfeasance over the past 20 years of his distinguished service to the University -- nor could there be). See generally, Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present.
It's caused many to look at other personnel decisions that don't seem to have made any more sense than this one. See, e.g., this morning's Russell Scott Valentino, "Advice to new VPs: Watch your backs, people," Iowa City Press-Citizen, October 1, 2008, p. A17.
But the story that caught my attention was Lauren Sieben, "Regent: No 2nd Thoughts," The Daily Iowan, September 26, 2008.
Former UI Provost Michael Hogan, who was denied the UI presidency in 2006, this week turned down a $100,000 bonus for exemplary service as the president of the University of Connecticut. . . .
Hogan declined the $100,000 bonus because of the state and school's struggling economic situation, and he asked that the money be given to the university's graduate program, the Associated Press reports.
Hogan served as UI provost from 2004 to 2007. He was a finalist in the UI presidential search in the fall of 2006, before the regents rejected all four finalists.
The regents called for a second presidential search in 2007, which cost the university roughly $200,000 and yielded then-Purdue Provost Sally Mason.
During the first search, Regent Robert Downer [noted] . . . that Hogan had been an "exemplary provost."
"I felt that he would have been an excellent president," Downer said. . . .
Members of the UI Faculty Senate and UI Student Government also were shocked and disappointed at the regents' decision to disband the search in 2006. The two groups passed "no-confidence" votes in November that year, a symbolic gesture of outrage.
Former Regent Amir Arbisser said Hogan received "very serious" consideration in the presidential search because of his prominence in the UI community, but [it was] . . . a "politically unpleasant" time.
"I think that it's a matter of sometimes throwing out the baby with the bath water," Arbisser said. "I think that people were looking for a completely new crew of candidates, not that [the] candidates we had looked at weren't excellent. . . ."
I didn't choose to post a comment regarding Mike Hogan to this story at the time (only a comment about the Daily Iowan's closing out the opportunity to put comments on two stories that day involving President Mason). What follows are excerpts from a random sampling from those Daily Iowan readers who did. The more severe criticisms of President Sally Mason have been deleted because (a) it is to everyone's interest that CEOs succeed, whether the president of our country or our university, (b) I don't think firing anybody is the answer to any problems the UI may have, and (c) this blog entry isn't about President Mason anyway, it is about (University of Connecticut) President Hogan.
Outrageous
posted 9/26/08 @ 10:00 AM CST
Didnt the regents say that the candidates were unqualified when they rejected a candidate that is vastly superior to our new president? Mason can't get a raise and Hogan turns down a bonus because of the economy. Dear Regents: you made a HUGE mistake. Your extreme negligence on this issue goes beyond any business judgment ruling that we would apply and the people of Iowa should get to recoup the losses you have inflicted from you personally.
Chris
posted 9/27/08 @ 5:41 PM CST
Why don't they just ditch Mason? . . .
Let's weigh the "evidence" on Mason:
[lengthy criticism of Mason follows, and then the comment concludes . . .]
And, the very sad reality -- we could have had Mike Hogan. He wanted the job and was imminently qualified and adored. Instead, he's at University of Connecticut, where he has just contributed his bonus BACK to the University. I guess the regents just could not tolerate a leader who has more intelligence, integrity, ability to lead, support, and intelligence than them.
At a minimum, they should see if Mike Hogan would come back as president, if they'd fire Mason, as would be appropriate in this situation. . . .
Similar, anonymous, comments were added to my blog entry, "Cleaning Up After the Party," September 26, 27, 2008.
Anonymous said...
I have several concerns: . . .
Instead of stepping up and taking responsibility, Mills and Jones are thrown under a bus. You can say that Jones may have had past problems, but where's the evidence that either he or Mills is responsible for the mishandling of this event?
Strike 3!
The bottom line is that the Regents have to justify hiring her over Mike Hogan. That's right -- Our first choice, who went off to better and brighter alternatives in Connecticut -- where, BTW, he just DONATED his $100k bonus back to the university.
Meanwhile, Mason, in a shadow of under-performance, receives an increment to her performance bonus.
How sad. Let's see about bringing back Hogan!
9/27/2008 06:11:00 PM
Anonymous said...
The regents didn't want Hogan because he could think for himself, just like Skorton did. The regents wanted someone too dumb to think for themselves, someone who had to be told how to think. That is, by her own account, why Mason fired Mills and Jones-- they weren't telling her what to think when she needed them to!
Looks like the regents got just what they wanted with this hire. How lucky for all of us.
9/27/2008 08:44:00 PM
Anonymous said...
I think you are right, anonymous-at-8:44PM. . . .
It's a little ironic that Amir Arbisser has come out in support of Mike Hogan at this point (according to the Daily Iowan). He voted against him as a presidential appointment. Yet, I have to respect his integrity for stepping up and admitting a mistake was made. . . .
--Signed, a once-proud faculty member
9/28/2008 07:55:00 AM
When Mike Hogan was here as our Provost you could probably have counted me as a "fan" -- though I was not a member of the Facebook "Hogan's Heroes" group. But I never worked with him on anything; in fact, I don't think I ever talked to him in his office about anything; and he made no decisions (of which I am aware) that affected me positively or negatively. So I claim no special knowledge.
Moreover, university administrators, like administrators of most institutions, are like judges. Most of the time their decisions mean that someone wins and someone loses. Those who "win" give no credit to the decider because, after all, they deserved to win, they were right and the other person wrong, and the decider only did what they ought to have done. Those who "lose" go away convinced the decider is either incompetent, corrupt or biased against them.
So I assume Hogan must have created his own detractors at our University; but my rough assessment is that, if so, they were far outnumbered by his fans -- including a good many regents.
Missing him, I decided to check out how he's been doing at Storrs, Connecticut. (Hopefully, it's unnecessary to add that I've had no contact with him, or anyone at his university, with regard to this blog entry, and I can only hope that if he ever sees it he won't be upset.)
Here's an editorial from the (University of Connecticut) The Daily Campus a couple weeks ago that provides a summary (Photo credit: Wikipedia; the dog in the picture is "Jonathan," the school mascot): Editorial, "Hogan's campus presence more than just a photo op," The Daily Campus, September 17, 2008:
Toward the end of former UConn President Philip Austin's tenure, a survey was taken asking students, faculty members and administrators what they would like to see in a future university president. The result of this survey was not surprising to most -- nearly unanimously, those connected with UConn were looking for a president who was a more visible member of the community.
To those who asked for a president they could connect with, someone who would be an active member of UConn's growing community, Michael Hogan has been the answer to their prayers.
In the year since President Hogan came to UConn, he has managed to make himself an integral part of the university on a multitude of levels. . . . He is an honorary member of a variety of fraternities and sororities on campus. His face graces the cover of the UConn dining handbook, replete with beekeeper hat to highlight UConn's efforts to use locally produced honey. It was Hogan who greeted parents on move-in day and Hogan who took the bus with students to football games. During sporting events, the president can typically be found in the student section and on Relay for Life he took laps around the track with student volunteers. . . .
He regularly eats meals in dining halls and is often approached by average students just to say hello. . . .
Students can often be seen waving at Hogan as he walks around campus, or shouting out his name at he passes by.
"Mike has made a very conscious effort to really get to know a lot of students. . . . I really run into him more informally around campus than I probably do formally, which says a lot," said USG President Ryan McHardy.
After years of being governed by a president who was rarely heard from directly and even more rarely seen around campus, UConn wanted a president who was a real person, someone they could connect with and who would be part of the community. In the year since President Hogan arrived in Storrs, that is exactly what we've received.
Not surprisingly, when it came time a couple of days ago for the paper to issue "Hogan's Report Card" they awarded him an "A" for "approachability." Editorial, "Hogan's Report Card: One Year in Review," The Daily Campus, September 26, 2008 ("'Mike,' as Hogan allows students to call him, is definitely a far cry from past presidents who liked to stay in their offices. Hogan walks around campus regularly, . . . seems to enjoy students' coming up and introducing themselves and generally makes time for small talk . . . and makes a discernible effort to reach us on our level.").
They also gave him a "B+" for fundraising, having "exceeded his goal of raising $55 million in new gifts . . . the second best performance in the university's history," and an "A-" for the "environment," among others (one A, one A-, two B+, and one B- -- contested by a student reader as far too low and unrealistic for his "political advocacy").
Mike Hogan's delightful blog -- which is called the "Pres Release" -- provides one reason for his environmental grade in a September 29 entry: "UConn has improved its rating from a year ago and is now listed as a “Campus Sustainability Leader” in the 2008-09 Green Report Card, which was released last week by the Sustainable Endowments Institute. . . . Only eight state public universities in the nation were rated higher than UConn and 12 others received the same overall rating, including several of our 'aspirational' peers: Cal-Berkeley, UVA, Wisconsin-Madison and Michigan."
He also blogs about his "Report Card":
I got my report card from the Daily Campus today. A solid A-/B+, depending on your grading scale. But of course this is before the upward adjustment for the usual grade inflation, which would probably convert the grade to an A+. So I’m very happy with the results. Besides, since I already have a good job I don’t have to worry about getting into a top-notch law school.
Looking at the Daily Campus, I got to thinking about my report cards in grade school when we would get marks like ‘Good,’ ‘Satisfactory,’ and ‘Unsatisfactory’ for our personal behavior. I was once in a class where the teacher asked us to make out our own report cards and explain the grades we gave ourselves. So I did that here, based on the cards I used to get. Here are the results:
I had to give myself an S- for General Deportment in my second twelve weeks because of getting too exuberant at a Women’s Basketball game in Gampel. But as you can see, I think I’m improving. I didn’t give myself any E’s (Excellent) since I can always do better. Besides, these are not adjusted for grade inflation!
The blog contains 17 entries for September alone, with lots of photos. In one he's pictured with the "UConn Marching Band’s clarinet section." He says, they "sent me this photo taken on the field after the Hofstra game. As I look at the picture, I’m not sure if that’s really me or if it’s another version of ‘Stand-Up Mike,’ that two-dimensional figure you might have seen around campus and last residing in Kevin Fahey’s office."
There is apparently something called "The Rock" on campus that appears to be literally an enormous rock that one is permitted to paint with birthday and other greetings.
There are his campaigns: "trayless dining" as a water conservation measure, the use of locally developed honey ("Honey Harvest" photos; "Dining Services harvested its first batch of honey from the hives they set up last spring . . ."), and the picnic he put on to promote graduate and professional education.
Some are his comments about UConn's academic achievements -- some EE and computer engineering students who've figured out how to send computer data as sound waves through water, or a faculty member with a sense of humor about her recently well-funded research on tape worms.
Some, like those of any blogger, describe his day: "This past weekend I took some time out from my usual work schedule to take in some UConn athletic events – it was a perfect weekend to be outside. I went to four games (football, softball, field hockey, men’s soccer) and we were 4-0 in those games."
And, of course, at a time when we're paying our football coach in the millions, putting an extra $30,000 into our UI president's "incentive package" (now $80,000), Wall Street executives are being permitted to keep their jobs and multi-million-dollar bonuses (rather than forcing their firms to go through bankruptcy, thereby requiring the executives to pay back the bonuses to the trustee in bankruptcy for creditors) as a "solution" to a problem these executives created for themselves and the global economy -- what a bright and shining moment it is to see someone, whose accomplishments have warranted a $100,000 bonus, turn that bonus back to his University because of the economic hard times.
You want class? That's class.
Class plus . . . impressive fundraising, serious academic accomplishment by faculty and students, mutual respect, a learning environment, coupled with a sense of fun and good humor with all. School just doesn't get much better than that.
All in all I'd say our Mike Hogan is doing all right on the east coast for an Iowa boy ("Born and raised in Waterloo, Iowa, Hogan earned his B.A. degree at the University of Northern Iowa, where he majored in English with minors in history and classics; his M.A. and Ph.D. degrees were conferred by The University of Iowa.").
I still miss him.
# # #
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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September 24, 2008, 9:00 a.m.
The Lawyer Did It
The first recorded use of a "scapegoat" of which I am aware was 4500 years ago. Whatever the actual facts may be, clearly it is an ancient and -- in modern times -- sometimes dishonorable ritual. [Picture credit: William Holman Hunt, 1854; Wikipedia.]
Is it being played out once again right here in River City?
UI President Sally Mason has responded to the Stolar Report of the University's mishandling of an alleged sexual assault last October 14 ("a perfect storm," the firm's lead investigator put it) by firing the UI's General Counsel Mark Mills (and also UI Vice President Phil Jones). She first checked with the Regents, who indicated they supported her action. The matter is to be reviewed by Regents tomorrow when she will presumably apologize, and they will, presumably, tell her to "go forth and sin no more" -- while at least maintaining (if not increasing) her $500,000-plus salary and benefits.
Before any of this happened I wrote "The Case for Mills and Jones" in Nicholas Johnson, "Rational Responses to Stolar and Global Finance," September 20, 2008. (The largest collection of documents, news coverage, commentary and links regarding all this remains the Web site, Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present. Sometime later today, hopefully, all of the enormous additional material available this morning will be commented upon, and linked to, from that Web site.)
In "The Case for Mills and Jones" I didn't attempt to defend everything the Stolar Report said they did (and didn't) do. But I noted five categories of reasons why their peremptory dismissals would not be appropriate -- never realizing last Saturday when I wrote it that they would be gone by yesterday (Tuesday). I mentioned, among other things, that because so many people were involved that it would be unfair to single them out; that if they were to be fired their overall performance needed to be evaluated in a routine and calm way (as the Regents are doing with President Mason); that "the buck stops," normally, at the CEO/presidential level, not the vice-presidential level; and that focusing on them, making it look like the problem was simply the consequence of the behavior of two individuals, diverts attention from the football culture of the campus and the need for organizational restructuring (as recommended by Stolar).
Finally, I noted that we had not yet really heard in full from Mills and Jones. We didn't know what the "back story" might prove to be.
We still don't know.
But we sure know a lot more than we knew yesterday afternoon.
I'll reproduce excerpts from Brian Morelli's story, below, and then provide some commentary of my own.
University of Iowa President Sally Mason was aware of how an alleged sexual assault investigation was being handled, a former UI executive said.
Marcus Mills said, "Yes, absolutely," when asked Tuesday if Mason knew what was happening in the investigation. . . .
Mills said he and Mason initially discussed student privacy concerns regarding the letters, but ultimately that did not preclude them releasing the letters to the regents.
The letters were not turned over because the regents didn't ask for documents during its investigation and because "we had the perception that whoever sent the letter, the family, did not want it to go to the regents and did not want it to be made public," Mills said.
Mills said he and Mason received a letter from UI public safety director Chuck Green, which Mills said he took to indicate Mason was aware of the family's concern about the letters becoming public. Mills declined to comment further on this.
Mills rejected his portrayal in the report as having the lead role in UI's investigation of an alleged sexual assault that involved two former UI football players Oct. 14, 2007, in Hillcrest Residence Hall.
"I didn't feel that I was overseeing the investigation. There wasn't an investigation in that sense. Different departments were heading up different aspects of the investigation," Mills said.
Mills also said Stolar failed to ask for his version of certain events and omitted parts of his testimony from their report, such as his side of conversations with the alleged victim's father. Mills also said UI's actions were affected by county attorney subpoenas, the criminal case against the former UI football players and a lawsuit filed by the Iowa City Press-Citizen.
"I think I handled this to the best of my ability with integrity under the circumstances," Mills said.
Brian Morelli, "Mills says Mason knew what was happening," Iowa City Press-Citizen, September 24, 2008, p. A1.
Among the documents I make available in full text from Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present is Thomas Evans, "REPORT ON THE UNIVERSITY OF IOWA’S COMPLIANCE WITH POLICY AND PROCEDURES WHILE INVESTIGATING A SEXUAL ASSAULT COMPLAINT," Iowa Board of Regents, Agenda Item 17, June 11-12, 2008 (a pdf file).
This is the report of the Regents' first investigation.
Why is that relevant?
Because it provides the foundation for judging the credibility of Marc Mills' assertions.
Consider the Board of Regents' characterization of their charge to Tom Evans regarding their own first investigation. As its "Executive Summary" puts it:
"On November 16, 2007, the Board of Regents requested the Board Office to review the University of Iowa’s compliance with University and Board policies and procedures and applicable statutes while investigating an alleged sexual assault that occurred on campus on October 14, 2007. The Board further requested the Board Office to examine whether current policies and procedures are adequate." (emphasis supplied)
And what was Evans' conclusion? "After a comprehensive review of the facts of the alleged incident and each of the applicable University policies, it is clear that University officials fully complied with internal procedural requirements."
Given this mission, and conclusion -- consistent with President Mason's assurances at the time that all procedures had been followed -- it becomes relevant to ask: Were any documents necessary to Evans' investigation? Were any documents asked for? If not -- especially if there was reason to believe that the alleged victim's family definitely did not want the letter/s made public at that time -- does the University President's, and General Counsel's, and others', failure to gratuitously offer up hundreds and hundreds of documents -- including those the family wanted to be kept confidential -- warrant the firing of the General Counsel?
I may have missed something (literally; I may have) but I can't recall off the top of my head anything in the Stolar Report of events -- of which the lead investigator said "everything that could have gone wrong did" -- that any one of those things "that could have gone wrong" included a failure to comply with internal procedures.
If President Mason thought there were none, and Evans found none, and Stolar mentioned none (after examining all those documents the University did not gratuitously offer up to Evans), and if Stolar found there was no effort at a "cover-up," it seems a little disingenuous to unceremoniously fire Marc Mills on the grounds, in part, that he failed to offer up the mothers' letter/s.
Moreover, if Mills' account is correct (and of course I'm not saying it is; how could I know?), it sounds like President Mason was more intimately involved in the decision not to turn over documents (including the letter/s) than she has yet let on. She earlier referred to a rationale that the material was covered by a federal law protecting student privacy. Mills is now saying they discussed, but rejected, that interpretation, and decided (jointly?) not to turn over the letter/s and other documents for other reasons. As Morelli reports, "The letters were not turned over because the regents didn't ask for documents during its investigation and because 'we had the perception that whoever sent the letter, the family, did not want it to go to the regents and did not want it to be made public,' Mills said."
Whatever President Mason has done with regard to Mills dismissal, and whatever the Regents may do about it tomorrow, I do think it is a little premature for any fair, impartial and judicious member of the public to be volunteering time and talent building the gallows for Marc Mills.
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