Once again, for those new to this blog site, at present there are 39 posts on the blog and each has its own set of comments. To read the comments you have to hit the word "Comments" at the beginning or end of the post. Somewhat confusing is that when you bring up the comments for a specific post it eliminates the other posts from the screen. To bring the other posts back up simply go back to the top of the page and click on Blog. Feel free to comment should you wish. No email address is required to make a comment so anonymity is strong. Due to some previous abuse of this right to anonymously comment, I have had to include an approval option, but I try to approve within 24 hours. To understand the development of the blog it is best to read it from the bottom post (Dr. Paul Kearney Case) up. One point of note here, to read the earliest posts you have to click on the word "<<Previous" at the very bottom of the posts available. Finally, for those just looking for a good summary of the Dr. Kearney case, simply scroll down two posts to the 12/10/2016 post. For social media developments on the Dr. Kearney situation I would encourage you to also visit the excellent "Save Dr. Kearney Facebook Page":
https://www.facebook.com/search/top/?q=save%20dr%20kearney
Introductory Remarks: (see previous post for documentation)
In the previous post we discussed aspects of “due process” as they are applied, or not applied, at the University of Kentucky. In the Dr. Paul Kearney case, "due process" was more like “dew process” in that it was a very highly watered down, if not a washed out version of “due process”. In that situation we had trial and sentencing of Dr. Kearney both in his absence and in the absence of any representation on his behalf. A Medical Staff Executive Committee (MSEC) jury of individuals that clearly had conflicts of interest, convicted Dr. Kearney predicated upon an activity that the administration fully endorsed for 25 years via outstanding performance evaluations, promotion to full professor with tenure, 29 teaching awards, leadership in the Level 1 trauma center and an endowment in his name.
The issue of “due process” was more recently brought to everyone’s attention in a nationally publicized incident that occurred at the University of Kentucky wherein a university faculty member, Mr. Buck Ryan, without any attempt at “due process", was charged, convicted and punished for alleged sexual harassment/misconduct. The subsequently published response by the University of Kentucky administration representative, Mr. Jay Blanton, was that: “the university has no obligation to provide you with due process”. This controversial response led to a series of nationally aired criticisms questioning the university's stance on "due process".
Finally, in response to Mr. Ryan’s complaint that he was denied access to his confidential personnel file, and information related to the charges against him, Mr. Blanton stated:
“If Ryan will simply waive his own personal privacy rights, the university will be happy to release the entire investigative file as well as his repeated e-mails to university officials. The university would redact certain portions of the files that would compromise the privacy rights of students. But every record that Ryan claims should be in the open would be.”
Unfortunately this can only be interpreted to mean that it is the University of Kentucky official policy that: if a faculty member wishes to view something in his/her confidential personnel file, he/she can only view it in a redacted form and he/she is required to allow the university to make this information available to the public.
All of this generated a University Senate interest in university regulations governing “due process” and access to “confidential personnel files”. This in turn resulted in a special session of the University Senate Council Rules Committee wherein they discussed these matters, especially as they might be interpreted through the existing University regulations. Following this meeting, Dr. Davy Jones, a former faculty representative on the University’s Board of Trustees, a University Senate member, and an established advocate of faculty rights, initiated an investigation into the university regulations as they might apply to faculty access to their confidential personnel file. Below I have pasted an email Dr. Jones recently sent to the relevant Senate Council Committee members involved in the discussion of these matters.
Dr. Davy Jones Email:
To Senate Council, Senate Rules and Elections Committee, and Senate Council AR 6.2 Committee,
Given the nature of matters currently being attended to by you, I felt it is important that you be aware of recent events concerning University regulations affecting faculty, below. Davy
In 1991, the University Senate Council heard testimony from faculty that the UK administration had refused to provide faculty members either intramural administrative access, or external Open Records access, to all of their own personnel records. Although the Open Records law at KRS 61.884 states:
“Any person shall have access to any public [government] record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878”
the University was using the ‘preliminary notes/preliminary recommendations/preliminary memoranda’ exception of KRS 61.878(1)(i)(j) to justify withholding such personnel records from requesting faculty.
In July 1991, then UK General Counsel John Darsie, on behalf of the University administration, urged an Open Records Legislative task force against amending the Open Records law, because there are "lots of nuts" who use the law to seek information. A UK faculty member then attested to that task force that “We are not nuts. We are public employees who need your help… As university faculty, we are loyal public servants, and it will be unfair if we are not given equal protection with other state employees in their access to documents on themselves.” On the recommendation of the Legislative task force, the General Assembly in spring 1992 passed and the Governor signed the following amendment (blue underlining) to the state Open Records law:
“No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation...” (KRS 61.878(3)
Following the 1992 enactment of the above ‘exception to the exemptions’, the University denied a faculty member’s access to preliminary handwritten notes in the possession of the UK Affirmative Action office concerning a complaint lodged by the faculty member. The KY Attorney General decided specifically against the UK administration (93-ORD-19) for violating the 1992 amendment to KRS 61.878(3).
“KRS 61.878(3) was amended by the 1992 General Assembly … It now extends, by its express terms, to all "public agency employees[s], including university employees." We therefore conclude that KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) - (i) … To the extent that the cited opinions are inconsistent with this holding, they are hereby modified to reflect the change in the law... we conclude that the University erred in denying that portion of Dr. Flashman's request relating to handwritten notes... The University is directed to promptly release those records to Dr. Flashman.”
The UK President then issued to all University faculty and staff a Jan. 25, 1995 policy memorandum stating:
“University employees, of course, have complete access to their faculty and staff personnel files … Normally, University employees need not make an Open Records request to obtain records directly related to job assignments.”
In fact, the above intramural policy of employee administrative access is current reprinted right on the UK Legal Counsel Office’s own web site. Further, the UK Legal Counsel’s own web site also explains the current Open Records law as meaning “Provisions of the Open Records Law give University employees the right to inspect University records that are "related to" them, even though such records may be preliminary in nature.”
However, recently a faculty member sought access to “preliminary” records concerning a complaint filed against that faculty member. The faculty member submitted an intramural request to his dean for access. The dean directed the faculty member to contact the UK General Counsel Bill Thro, which the faculty member did, with verbatim the same request as was made the dean. The administration
- then mischaracterized the faculty member as having submitted an extramural “Open Records Request” and
- then denied the faculty member access to these records by citing an obsolete (1978) Attorney General opinion that said that (back in 1978) preliminary documents could be withheld from government employees. Hence, in contradiction to the 1992 amendment to the law itself, in contradiction to the 1993 Attorney General decision against the UK administration, and in contradiction to the UK Legal Counsel Office’s own web site, here is what the President Capilouto’s Chief of Staff Bill Swinford actually wrote to this faculty member:
“The Attorney General has opined that the documents of the OIE [Office of Institutional Equity] & EEO [Equal Opportunity Office] are exempt from the KORA [Kentucky Open Records Act] under the preliminary recommendation and preliminary memoranda exception. (KY OAG 78-738) Therefore, your request for documents is denied.”
____________________________________________________________
[bracketed material in the above summary has been added here]
Concluding Remarks:
Based upon the above historical analysis by Dr. Jones and his documentation of existing regulations, a fairly strong argument can be made that; in spite of Mr. Blanton's, General Council Thro's and Chief of Staff Swinford's declarations on this matter, the university administration and its lawyers openly chose to disregard existing regulations and laws with respect to Mr. Buck Ryan's rights of access to his confidential personnel file, while at the same time inventing their own set of laws to justify their denial of his rights.
As an aside, with respect to Dr. Jones' historical analysis of open records rulings as they apply to confidential personnel file access and open records requests, I especially like the statement offered by the former UK General Council, Mr. Darsie, whose 1991 rationalization for not providing open records requests included: there are "lots of nuts" that use the law to seek information. Now that's a scary thought indeed. Well I think that Mr. Darsie can rest in peace, because it unfortunately appears that the reverse scenario may be the current situation at the University of Kentucky, meaning: their are "lots of nuts" at UK that may wish to suppress or manipulate information by refusing open records requests". If we reflect back on the Dr. Kearney case, evidence has been presented for the potential manipulation of documents included in his confidential personnel file. This manipulated confidential personnel file was subsequently used in the aforementioned “in absentia MSEC court proceedings”, and played a role in the verdict and sentencing by this court. Some may attempt to argue that following his conviction and sentencing, Dr. Kearney was provided the opportunity to defend himself in the so called “Fair Hearing” trial, but that too consisted of a 3 person jury, all of whom had potential conflicts of interest, and again appears to have included documentation from his confidential personnel file that was either unsubstantiated, unsigned or possibly solicited. All of this evidence, along with the university's resistance to transparency, suggest that the current administration and lawyers governing the University of Kentucky would prefer some form of totalitarian justice system to that available to other citizens of this state and government.
Fortunately for all faculty at the University of Kentucky, we have colleagues like Dr. Jones who are willing to challenge what many might interpret as an abuse of authority. So personally I would like to take this opportunity to thank Dr. Jones for his efforts to defend faculty rights and hold accountable those university administrators and lawyers that feel that they do not have to abide by university regulations, state regulations and constitutional rights when dealing with faculty disciplinary proceedings.
https://www.facebook.com/search/top/?q=save%20dr%20kearney
Introductory Remarks: (see previous post for documentation)
In the previous post we discussed aspects of “due process” as they are applied, or not applied, at the University of Kentucky. In the Dr. Paul Kearney case, "due process" was more like “dew process” in that it was a very highly watered down, if not a washed out version of “due process”. In that situation we had trial and sentencing of Dr. Kearney both in his absence and in the absence of any representation on his behalf. A Medical Staff Executive Committee (MSEC) jury of individuals that clearly had conflicts of interest, convicted Dr. Kearney predicated upon an activity that the administration fully endorsed for 25 years via outstanding performance evaluations, promotion to full professor with tenure, 29 teaching awards, leadership in the Level 1 trauma center and an endowment in his name.
The issue of “due process” was more recently brought to everyone’s attention in a nationally publicized incident that occurred at the University of Kentucky wherein a university faculty member, Mr. Buck Ryan, without any attempt at “due process", was charged, convicted and punished for alleged sexual harassment/misconduct. The subsequently published response by the University of Kentucky administration representative, Mr. Jay Blanton, was that: “the university has no obligation to provide you with due process”. This controversial response led to a series of nationally aired criticisms questioning the university's stance on "due process".
Finally, in response to Mr. Ryan’s complaint that he was denied access to his confidential personnel file, and information related to the charges against him, Mr. Blanton stated:
“If Ryan will simply waive his own personal privacy rights, the university will be happy to release the entire investigative file as well as his repeated e-mails to university officials. The university would redact certain portions of the files that would compromise the privacy rights of students. But every record that Ryan claims should be in the open would be.”
Unfortunately this can only be interpreted to mean that it is the University of Kentucky official policy that: if a faculty member wishes to view something in his/her confidential personnel file, he/she can only view it in a redacted form and he/she is required to allow the university to make this information available to the public.
All of this generated a University Senate interest in university regulations governing “due process” and access to “confidential personnel files”. This in turn resulted in a special session of the University Senate Council Rules Committee wherein they discussed these matters, especially as they might be interpreted through the existing University regulations. Following this meeting, Dr. Davy Jones, a former faculty representative on the University’s Board of Trustees, a University Senate member, and an established advocate of faculty rights, initiated an investigation into the university regulations as they might apply to faculty access to their confidential personnel file. Below I have pasted an email Dr. Jones recently sent to the relevant Senate Council Committee members involved in the discussion of these matters.
Dr. Davy Jones Email:
To Senate Council, Senate Rules and Elections Committee, and Senate Council AR 6.2 Committee,
Given the nature of matters currently being attended to by you, I felt it is important that you be aware of recent events concerning University regulations affecting faculty, below. Davy
In 1991, the University Senate Council heard testimony from faculty that the UK administration had refused to provide faculty members either intramural administrative access, or external Open Records access, to all of their own personnel records. Although the Open Records law at KRS 61.884 states:
“Any person shall have access to any public [government] record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878”
the University was using the ‘preliminary notes/preliminary recommendations/preliminary memoranda’ exception of KRS 61.878(1)(i)(j) to justify withholding such personnel records from requesting faculty.
In July 1991, then UK General Counsel John Darsie, on behalf of the University administration, urged an Open Records Legislative task force against amending the Open Records law, because there are "lots of nuts" who use the law to seek information. A UK faculty member then attested to that task force that “We are not nuts. We are public employees who need your help… As university faculty, we are loyal public servants, and it will be unfair if we are not given equal protection with other state employees in their access to documents on themselves.” On the recommendation of the Legislative task force, the General Assembly in spring 1992 passed and the Governor signed the following amendment (blue underlining) to the state Open Records law:
“No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation...” (KRS 61.878(3)
Following the 1992 enactment of the above ‘exception to the exemptions’, the University denied a faculty member’s access to preliminary handwritten notes in the possession of the UK Affirmative Action office concerning a complaint lodged by the faculty member. The KY Attorney General decided specifically against the UK administration (93-ORD-19) for violating the 1992 amendment to KRS 61.878(3).
“KRS 61.878(3) was amended by the 1992 General Assembly … It now extends, by its express terms, to all "public agency employees[s], including university employees." We therefore conclude that KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) - (i) … To the extent that the cited opinions are inconsistent with this holding, they are hereby modified to reflect the change in the law... we conclude that the University erred in denying that portion of Dr. Flashman's request relating to handwritten notes... The University is directed to promptly release those records to Dr. Flashman.”
The UK President then issued to all University faculty and staff a Jan. 25, 1995 policy memorandum stating:
“University employees, of course, have complete access to their faculty and staff personnel files … Normally, University employees need not make an Open Records request to obtain records directly related to job assignments.”
In fact, the above intramural policy of employee administrative access is current reprinted right on the UK Legal Counsel Office’s own web site. Further, the UK Legal Counsel’s own web site also explains the current Open Records law as meaning “Provisions of the Open Records Law give University employees the right to inspect University records that are "related to" them, even though such records may be preliminary in nature.”
However, recently a faculty member sought access to “preliminary” records concerning a complaint filed against that faculty member. The faculty member submitted an intramural request to his dean for access. The dean directed the faculty member to contact the UK General Counsel Bill Thro, which the faculty member did, with verbatim the same request as was made the dean. The administration
- then mischaracterized the faculty member as having submitted an extramural “Open Records Request” and
- then denied the faculty member access to these records by citing an obsolete (1978) Attorney General opinion that said that (back in 1978) preliminary documents could be withheld from government employees. Hence, in contradiction to the 1992 amendment to the law itself, in contradiction to the 1993 Attorney General decision against the UK administration, and in contradiction to the UK Legal Counsel Office’s own web site, here is what the President Capilouto’s Chief of Staff Bill Swinford actually wrote to this faculty member:
“The Attorney General has opined that the documents of the OIE [Office of Institutional Equity] & EEO [Equal Opportunity Office] are exempt from the KORA [Kentucky Open Records Act] under the preliminary recommendation and preliminary memoranda exception. (KY OAG 78-738) Therefore, your request for documents is denied.”
____________________________________________________________
[bracketed material in the above summary has been added here]
Concluding Remarks:
Based upon the above historical analysis by Dr. Jones and his documentation of existing regulations, a fairly strong argument can be made that; in spite of Mr. Blanton's, General Council Thro's and Chief of Staff Swinford's declarations on this matter, the university administration and its lawyers openly chose to disregard existing regulations and laws with respect to Mr. Buck Ryan's rights of access to his confidential personnel file, while at the same time inventing their own set of laws to justify their denial of his rights.
As an aside, with respect to Dr. Jones' historical analysis of open records rulings as they apply to confidential personnel file access and open records requests, I especially like the statement offered by the former UK General Council, Mr. Darsie, whose 1991 rationalization for not providing open records requests included: there are "lots of nuts" that use the law to seek information. Now that's a scary thought indeed. Well I think that Mr. Darsie can rest in peace, because it unfortunately appears that the reverse scenario may be the current situation at the University of Kentucky, meaning: their are "lots of nuts" at UK that may wish to suppress or manipulate information by refusing open records requests". If we reflect back on the Dr. Kearney case, evidence has been presented for the potential manipulation of documents included in his confidential personnel file. This manipulated confidential personnel file was subsequently used in the aforementioned “in absentia MSEC court proceedings”, and played a role in the verdict and sentencing by this court. Some may attempt to argue that following his conviction and sentencing, Dr. Kearney was provided the opportunity to defend himself in the so called “Fair Hearing” trial, but that too consisted of a 3 person jury, all of whom had potential conflicts of interest, and again appears to have included documentation from his confidential personnel file that was either unsubstantiated, unsigned or possibly solicited. All of this evidence, along with the university's resistance to transparency, suggest that the current administration and lawyers governing the University of Kentucky would prefer some form of totalitarian justice system to that available to other citizens of this state and government.
Fortunately for all faculty at the University of Kentucky, we have colleagues like Dr. Jones who are willing to challenge what many might interpret as an abuse of authority. So personally I would like to take this opportunity to thank Dr. Jones for his efforts to defend faculty rights and hold accountable those university administrators and lawyers that feel that they do not have to abide by university regulations, state regulations and constitutional rights when dealing with faculty disciplinary proceedings.