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Due Process Chapter 2

1/17/2017

13 Comments

 
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.
13 Comments
Jay-Z(wish)
1/18/2017 04:35:00 am

Surely it would be possible to provide faculty with real time electronic access to their personnel records although given the recent fiasco with UK IT and their inability to provide secure pubmed/journal access that might be too much to ask..As far as I am concerned anything that can't be done on the record with an electronic trail is already suspect.

Reply
Insane Karpf Posee
1/21/2017 06:24:19 am

Did anyone else get this request to participate in this survey. There is a question about identifying a single thing that could be done to improve the COM- wouldn't it be great if everyone put down "reinstate Paul Kearney"..you know what to do!

Colleagues:
As I hope you are aware, we are engaged in strategic planning that will guide the UK College of Medicine’s activities through 2022.

We have already engaged input from more than 30 areas, including basic science departments, clinical departments, clinical divisions and centers, and across our campus, in dialogue about our strengths, needs and opportunities.

The insights from these discussions and your input will provide key inputs to the strategic planning work groups to be formed focusing on education, research, clinical services, diversity & inclusivity, and community engagement.

In an ambitious effort to reach out to every member of our college community and give everyone an opportunity to contribute to this important document, I am inviting all faculty, staff and students to respond to a strategic planning survey.

The survey linked below will help us understand your assessment of the college’s standing in regard to areas for improvement and opportunities.

If you have additional thoughts we should consider that are not addressed in this standardized survey, please share those additional insights in the comment box at the end of the survey.

The survey is anonymous, and your responses will be aggregated by data analysts outside of the college.

I hope you will take a few minutes of your time to respond. Our planning process will benefit from the input of each member of the college community.

Results and analysis of both the faculty/staff and student surveys will be included in the current state assessment to be shared in 2017.

I appreciate the involvement and input we have received so far in our planning efforts. I continue to be impressed with the quality of faculty, staff and student achievement, commitment and contribution.

Together we are making a palpable impact on many of Kentucky’s most serious health challenges.

Reply
Dan Noonan
1/21/2017 04:14:13 pm

Thanks Jay and IKP for these comments. I like your suggestion IKP.

Reply
Trumpfalouto
1/24/2017 09:36:02 am

I'll just leave this here...

Colleagues and Students,

A Fayette Circuit Court Judge has strongly and clearly ruled in favor of the University of Kentucky’s position in the case involving the privacy of victim survivors of sexual misconduct.

For UK, this legal process has always been about one primary goal – preserving the right of a victim survivor to determine how, when, or even if to tell her story. We stand with survivors and we believe strongly that federal and state laws protect their right to privacy. Without privacy, we know victim survivors will not come forward to report. That’s what was at stake in this case.

The ruling without question reinforces our position, and this is a victory for victim survivors and their rights and their privacy. First, the court correctly recognized that all the records in question are education records under federal law. Second, the court recognized that no amount of redaction could have protected the privacy of the victim survivors in the case in question.

We are gratified by this outcome. But there is much work to do. And that work will only be accomplished when everyone – regardless of the different perspectives on the legal issues involved – comes together.

The question now is how do we move forward – with strongly held views and often differing perspectives, but united by common interests in pursuit of common goals?

We all believe we have a responsibility to protect the rights of the accused and those who courageously come forward as victims of sexual misconduct. We all want a safe campus where everyone is welcome and everyone belongs.

We all believe that more transparency and openness are critical elements in creating a system that protects the rights of all involved.

And we all believe the public, who supports this institution, has a role to play and a fundamental right to know that this university is appropriately honoring the trust that has been placed in us.

Our next step – no matter how the legal process unfolds -- must be to reform a system that is imperfect in the way it safeguards the interests of victims and the accused.

We have started on the path of reform already, significantly increasing training for both faculty and graduate students about the parameters of acceptable behavior.

Now, we will be working with faculty, student and staff leaders to ensure that someone who wants to join our community must disclose any record of sexual misconduct in their past.

And we believe that while due process for the accused must be protected, the process with respect to tenured faculty must move at a timelier pace. A fair resolution should not be measured in years, but in fair and timely outcomes.

That is work we can and must do together, regardless of the perspective on this specific legal case.

UK has been – and will continue to be - a leader nationally on many of these issues. We were the first major public university in the country to require all students to participate in a campus climate survey.

The deep data being yielded over the course of five years will help us continue to invest time, talent, and resources in making our campus safer and our community a place where everyone feels a sense of belonging.

We already know that more is needed in education, training, and understanding of the resources available to those who have been victimized and to the avenues of reporting to ensure that such victimization doesn’t continue.

UK is not alone. This is a national issue and every institution is grappling with the challenges associated with investigation, disclosure, and the protection of rights for victims and accused in cases of sexual misconduct.

We are not alone, but this is our issue to confront and our chance to lead. We will.

My hope, and belief, is that we can find a path forward that leads to a better system for all involved as we seek to foster a community of safety and belonging for everyone who calls this special place their home.


Eli Capilouto
President

Reply
Dan Noonan
1/24/2017 11:25:53 am

Thanks for this addition Mr. T.

What Dr. Capilouto was referring to in his victory speech was this:

http://www.kentucky.com/news/local/education/article128409149.html

I think he is saying the right thing in this memo, but I will wait and see the measures he and his committees come up with, especially those that ensure the safety of the students in the institutions these sexual harassers might be migrating to. Personally, I do not believe this approach of nondisclosure agreements that the university has traditionally used in these scenarios is the answer. Dr. Capilouto states in the above Herald Leader article that:

“The ruling without question reinforces our position, and this is a victory for victim survivors and their rights and privacy”.

Under the approach being used by Dr. Capilouto and his lawyers in the James Harwood case and others, it can also be said that:

“The ruling without question reinforces our position, and this is a victory for perpetrators of sexual misconduct, and their rights and privacy”.

As would be expected, this is a complex matter. If for example, there are multiple victims in a sexual misconduct case and one of these victims wishes to out the perpetrator while the other doesn’t……

Then there is the question of due process for the accused. In the case of Mr. Ryan discussed above, it appears the accusers were not the victims but rather a couple of faculty members who were insulted by Mr. Ryan’s song. All the evidence suggests no victims came forward or were even approached about the matter. It appears the adjudication of this case was predicated upon the statements of non-victims and the accused was basically denied access to his confidential personnel file and what was said about his sexual misconduct, unless of course he allowed the university to publish his confidential personnel file.

Although Dr. Capilouto has suggested that one approach to resolving some of these issues would be to require incoming faculty to reveal any previous sexual misconduct, I can’t see that to be much of an answer. How about establishing a regulation that states that nondisclosure agreements will no longer be allowed in sexual misconduct litigations or resolutions? I know some have voiced the opinion that this could lead to drawn out litigation and exposure of the victims, but if you institute a program requirement wherein all graduate students are required to attend an orientation that covers this matter and provides them with an understanding of the complexities of these issues, I think we would have done all that we can to protect the students as well as provided the deterrent.

With regard to due process, I think that any accused faculty member needs to be allowed to face the committee that is in charge of investigating and defining the validity of the charges against him/her. He/she must be given the opportunity to see and respond to the charges against him/her, and provide rebuttal.

Like I said, a complex matter that has been handled rather poorly by this and previous administrations.



Reply
Dan Noonan
2/2/2017 02:48:04 pm

I see that we are not the only school in this state battling open records laws and the state's Attorney General.

http://www.state-journal.com/2017/01/31/ksu-to-appeal-ag-records-ruling/

Reply
Jay Z(wish)
2/3/2017 01:13:38 pm

http://www.kentucky.com/news/local/counties/fayette-county/article130611519.html

This embezzlement is pretty small time compared to the huge amounts of money Zwishenberger and co are scamming out of UKHC every month for their massive salaries.

Reply
DJ
2/10/2017 09:57:33 am

Happy Birthday Dan

Reply
Dan Noonan
2/10/2017 12:24:18 pm

Thanks DJ, although I am not much into birthdays.

Reply
Tony Harrison
2/15/2017 08:42:47 am

Seems rather quiet around here. Is this the calm before the storm or is something else (like a settlement) going on? Given the essential impossibility of Kearney getting his clinical privileges back surely it would make a lot more sense for him to settle the case than just keep plowing ahead and spending more and more money on it.
Or is he really that stubborn?

Reply
Dan Noonan
2/16/2017 02:51:21 am

Thanks for the comment Tony. Nothing much going on at the present time with regards to the Dr. Kearney matter. I believe they are still fighting with the university lawyers with respect to the availability of people they requested depositions from. The university appears to be back to the old, "to heck with the law and justice, we've got more time and money than you" approach. Having said that, I must also add that I have faith in our administration. I feel certain they will soon find a way to trump Trump and provide us with more controversial headlines, so keep monitoring.

Reply
Insane Karpf Posee
3/8/2017 02:21:52 pm

Is this blog still active?

Reply
Dan Noonan
3/9/2017 11:07:05 am

Yes

Reply

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