The comment section ended in the previous blog post with further discussions about the Dr. Paul Kearney case. A blog commenter asked:
"So what if anything is happening with the Kearney Case? Is it actually going to go to trial? Or is it somehow entwined with the ongoing open records cases?"
For any new readers to the blog, this blog was initiated when the administration of the university hospital used a trauma ward incident (Dr. Paul Kearney using foul language during an emergency procedure) to take away Dr. Kearney’s patient privileges, ban him from coming on campus, telling his colleagues and staff that he is a dangerous person, confiscating his personal belongings and even attempting to have his license revoked. Interestingly, the person whose life he saved eventually decided not to file charges. Fortunately, not all of this early extreme harassment prevailed, and the Board of Trustees restored portions of his tenured professor privileges. Part of this might be because the university president received over a hundred letters of support for Dr. Kearney, the student residents in a clear defiance honored him with an award and the faculty voted him as their representative to the University Senate. In spite of all of this, the university lawyers and senior administration continue their harassment campaign.
Now you have to ask yourself, why does our university administration and its lawyers choose to protect a faculty member who they have deemed a sexual harasser and to harass a faculty member who is well respected by the students, staff and faculty he works with. One very strong possibility is that twice in the year 2014 (just prior to the above actions) Dr. Kearney suggested, in the presence of Dr. Michael Karpf and the College of Medicine Faculty Council, an audit of KMSF (the financial arm of the university hospital) finances. Both occasions resulted in verbal threats.
Eventually tiring of this harassment Dr. Kearney hired a lawyer and they filed a Whistleblower lawsuit against the university. Since then a variety of blog posts have touched on matters that have relevance to this Dr. Kearney case, including the university and KMSF’s defiance of open records laws and the state’s Attorney General. KMSF; founded by the university, governed by the university, defined by the Attorney General as part of the university, continues to campaign to claim independence from the university. This campaign began when people like Dan Ross and Paul Kearney questioned the financial practices of KMSF, and clearly suggests that KMSF has something to hide.
If any new blog readers wish to know the details of the above summary, further elaboration and official documents can be found in previous blog posts. With respect to where we are today in Dr. Kearney’s Whistleblower lawsuit, what I have been told is that what's going on now is the gathering of information through depositions and interrogatories. I have seen a copy of some of the interrogatories, and I believe a number of the senior administrators involved in the case have been or will be officially deposed with respect to claims they have made or their role in the whole process. Word on the street is that despite repeated requests, the University continues to stonewall and not produce witnesses for discovery. Because of this it is likely that this discovery phase will be extended again. The best guess at the current pace is that it will not proceed to trial until November. I should also note here that the lawsuit has been amended to include ongoing retaliation as well as abuse of authority by the President’s office including the General Council, old take the deal or we will destroy your career Professor/Adjunct Instructor Thro.
Just as one last tidbit of information. I was sent this publically available deposition of President Capilouto in regards to this case. Here it is:
From Deposition:
COMMONWEALTH OF KENTUCKY
FAYETTE CIRCUIT COURT
DIVISION NO. III
CIVIL ACTION NO. 15-CI-551
Wednesday, July 20, 2016
The witness, ELI CAPILOUTO, after first being duly sworn, was examined and testified as follows:
Q And the Board of Trustees makes the rules and regulations that govern the University, do they not?
A They approve the governing regulations. The administrative regulations are the responsibility of administration to develop. We have a process we go through for that.*
Q And would not a regulation in place by the Board of Trustees need to be followed by University administrators?
A We'd certainly try to follow a regulation passed by the Board.
Q If a faculty member is placed on administrative leave that's over 30 days, do the Board of Trustees have to be informed?**
A I can't recall every regulation that we have.
Q Are you familiar with Administrative Regulation 3:14?***
A No, I'm not.
Q In any manner, shape or form?
A No, sir, I'm not.
Q And isn't it correct that under University regulations, if a matter is placed in somebody's personnel file that's adverse, that they have the -- they be given the opportunity to file a written response?****
A I don't know exactly what the University's specific regulations are on a matter like that […]
Q But if there is such a regulation, you would agree that that regulation should be followed; correct?
A I would hope so, yes.
________________________________________
*University Senate as a Administrative Regulation “Stakeholder”:http://www.uky.edu/regs/files/AR%20Process%20Flow%20Chart.pdf
“The Office of Legal Counsel shall seek comments from appropriate stakeholders.” http://www.uky.edu/regs/files/ar/ar1-6.pdf, pg. 2
**Board of Trustees Governing Regulation X, page 12:
“(3) Leaves With Pay
Upon the recommendation of the appropriate administrative officers and approval of the Provost, a faculty member may be granted leave of absence with pay for a period not to exceed thirty (30) days for the purpose of permitting an appointee to attend a professional meeting, serve temporarily with an outside agency, serve in the military forces of the United States, or for other good cause. Such leaves of absence with pay for more than thirty (30) days require approval of the Board of Trustees.” http://www.uky.edu/regs/files/gr/gr10.pdf, pg, 12
*** http://www.uky.edu/regs/files/ar/ar3-14.pdf
**** “3. Unsolicited materials relevant to professional function may be included in the Standard Personnel File by the educational unit administrator provided the faculty employee sees them and is offered the opportunity to document his or her response to them. The faculty employee’s written responses shall be placed by the educational unit administrator in the individual’s Standard Personnel File.” http://www.uky.edu/regs/files/ar/ar2-1-1.pdf, pg. 7
I can only guess that these issues of administrative leave and the right to respond to charges were clearly violated in the Dr. Kearney case. Claimed ignorance of the regulations is always a good plea, though one would have to surmise that if the University President is unfamiliar with the university regulations then his General Council must likewise be ignorant of these regulations. At any rate, I suspect that these were just 2 of many university regulations that have been disregarded in the administrations avarice to drive out a tenured faculty member. It is no wonder that the university hospital physician satisfaction rating is one of the worst if not the worst in the nation. It is interesting to note that 96% of all civil cases are resolved short of a jury trial (https://www.hunton.com/files/News/236c18dd-fcb6-4486-a348-e96597a7062a/Presentation/NewsAttachment/4ef14289-8ad8-4aa1-b2e6-9af18a76a3a8/To_Settle_Or_Not_To_Settle_Law360.pdf). One of the reasons for this is because “Employee morale can also be damaged when a company fights an employee's action tooth and nail”.