"UK defies logic, law to keep secrets"

8/14/2016

Once again, for those new to this blog site, at present there are 23 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. Finally, 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.

The last blog commenter, Cherry Mole Sauce, felt this latest Herald Leader article on UK's continued fight to hide its secrets, deserves a post. I agree. This editorial article (http://www.kentucky.com/opinion/editorials/article95386857.html) discusses president Capilouto's most recent defense plan (http://uknow.uky.edu/content/tension-competing-values-0) to wear down open record requests by simply declaring some moral high ground, openly refusing to follow the law and fighting in court or suing anyone who asks for open records they do not want to give out. Or as President Capilouto put it:

"in a handful of very specific cases, we are faced with the decision of whether transparency is more important than the need to protect the privacy and dignity of individual members of our community"

What does:

" the need to protect the privacy and dignity of individual members of our community"

have to do with the University violating the Open Records law about the adequacy of its search for minutes of the policy-advising CoM Compensation Committee or information on BoT public meetings?

The university has ongoing at least 2 and probably 3 lawsuits with respect to fighting the state's Attorney General's decision on open records requests, then there are lawsuits related to suing 2 newspapers and Dr. Lachin Hatemi for requesting open records they didn't want to give, and oh yeh, don't forget the never ending Dr. Paul Kearney vendetta legal case.

So you wonder how your taxpayer dollars are being spent at this public state university? It is no wonder that they are raising tuition and reducing staff. With all of these legal expenses related to hiding this public information from the public, as well as their vendetta to drive out of the university challengers of their authority, there is little left to invest in education.

This gets old, but the older it gets the more important it gets. Why spend all this time and money to fight open records requests that by law they are required to release and in reality have nothing to do with protecting the privacy of the university community? In other words, "what are they hiding?"

44 Comments

Red

8/14/2016 12:19:14 pm

This is the same letter he sent out to us and you posted twice in the comment section of the previous post. I see Cappy also posted this on what he is calling his "blog". Too bad he doesn't offer the ability to comment on his blog site. I personally think Cappy's statement that reads:

"in a handful of very specific cases, we are faced with the decision of whether transparency is more important than the need to protect the privacy and dignity of individual members of our community"

should read:

'in a handful of very specific cases, we are faced with the decision of whether transparency is more important than the need to protect my office and administrators from embarrassment or jail.'

Illuminati

8/14/2016 01:14:28 pm

Interesting comment posted in the comments section at that Herald Leader article...

"Lachin Hatemi

Works at Novartis Pharmaceuticals

Eli Capilouto is covering up his shady business. He can run but he cannot hide. We will get you one day Eli, sooner than later."

Very very interesting. Could be a preview of things to come.

Dan Noonan

8/14/2016 01:46:26 pm

Thanks Red and Illuminati for your comments. Yes Red this is a bit redundant with respect to the comment section of the last post, but the blog comments on that post were getting long, this is the hottest thing going out there and it does have relevance to the blog emphases. As suggested by the editorial, it does appear that Capilouto and Thro's newest approach to hiding this information is to refuse any mandate by the Attorney General, fight it endlessly in court and sue those that they know can't afford the battle. What a waste of taxpayer's taxes. Furthermore, I don't believe the average citizen nor the average student believes this false pretense of morality, so it is not only costly for the university but also bad for the reputation of the University of Kentucky. Finally, everyone wants to know, why are they really doing it?

Mole Sauce

8/14/2016 04:43:57 pm

A more interesting development is that UKHealthcare actually lost money last month and projections for the rest of the year do not look good. This is what is holding up the raises/anticipated annual remuneration letters and what has precipitated the current hiring freeze. If the trend continues Mike Karpf could be back in Jackson Hole for ski season opening day!

8/15/2016 02:53:51 am

Thanks for the constructive comment Mole Sauce. This is unfortunate, but I suppose when you are paying a million dollars to a Washington lawyer to handle this Hazard fiasco and who knows how much to Harry Dadds to handle the KMSF open records battle, these sad predictions are perhaps understandable.

Inquiring Mind

8/15/2016 01:06:29 pm

In the quest for openness and transparency, have the details of Cappy's new contract made this summer with the BOTs been made public? I heard an unsubstantiated rumor that on top of the substantial salary increase there was a multi-million dollar, golden parachute put into place with a large severance package if he is terminated w/o cause. Is this public information? Or will it take the AG to find out the terms of this new contract?

8/15/2016 03:28:47 pm

More fun and games...

http://www.kentucky.com/news/local/education/article95775272.html

Mole sauce

8/15/2016 04:37:14 pm

The average UKHC monthly profit has been around $17M so the cost of this legal representation is not really eating into these that much.

Anyway, Kearney's alleged misdeeds are pretty wimpy compared to Assoc. Prof James Harwood's legendary behavior:

http://www.kykernel.com/news/kernel-obtains-withheld-records-victims-say-uk-trying-to-protect/article_1434f31e-6175-11e6-8148-2f5a5ecb7147.html

My personal favorite:

"The report said that when members of the group suggested that Harwood go home for the evening, he refused and urinated on the building."

8/16/2016 02:33:23 am

Thanks Illuminati and Mole Sauce for these additions. I totally agree, this Harwood case of student sexual harassment makes Dr. Kearney's look like a traffic ticket. The university president and his lawyers appear to be once again trying to sweep this tragedy under the rug, going so far as to suing the student newspaper and its editor for attempting to investigate it. What a poor example of how to run an institution of higher learning. I suspect this has or will result in more law suits against the university and more tax dollars being invested into lawyer fees and settlements.

8/16/2016 06:49:24 am

Given the proven legal ineptitude of the UK "team" its possible that the Har(d)wood agreement included some confidentiality provision that has now been broken by the information "leak". It would not be surprising if Hard(d)wood can go after UK over this.

These kinds of things happen at all universities so presumably there is already a playbook for how to handle them. I can't imagine that the way this has been handled at UK is the normal approach.

8/16/2016 11:32:33 am

Thanks for the comment Mole Sauce. I am still trying to figure out where Harwood fits into this: "need to protect the privacy and dignity of individual members of our community". Let's see, we protect sexual harassers and sue newspapers for asking about them. It sure sounds like President Capilouto has his priorities all screwed up.

8/16/2016 08:06:17 am

The new friendly face of KMSF...Check out their web site!

Colleagues,

Earlier this week, President Capilouto communicated with the campus about our shared values as an institution and how, sometimes, those values can be in tension with one another.

On the one hand, as a university and health care system, we deeply value openness and transparency. The exchange of ideas and the vigorous debate of concepts and methods are critical to our success.

At the same time, we are equally committed to protecting the sanctity of privacy and confidentiality – for the patients we treat, for the students we educate, and for our colleagues and others, whose work and interactions sometimes involve complex and privileged information.

In recent months, those tensions have been evident in some cases involving the Kentucky Medical Services Foundation and the important work we do together.

In response to questions about KMSF, we have provided literally thousands of pages of documents and records to the media and answered dozens of open records requests from both reporters and private citizens fully and quickly. Our by-laws commit us to this sense of openness and transparency.

In a small handful of cases, however, we have declined to provide the information requested because it conflicted with our obligation and responsibility – as explicitly directed under federal law -- to protect patient information. And, in some cases, there are clear protections afforded for privileged communications with our counsel as part of the development of institutional or foundation policy.

At the direction of the KMSF Board, those matters are now in court. And that’s appropriate. Sometimes, issues can only be resolved in a court of law, even as the debate continues in the court of public opinion.

We are confident that our position in that small number of cases is the correct one. We also know that this debate will continue to play out – and receive attention from the media – in the coming weeks and months.

As at the President of KMSF, I have been providing and will continue to provide timely and responsive communications to you about these issues and the work we are doing on your behalf and on behalf of the University.

Over the past several months, KMSF Executive Director Carrie Cassis and I have met with many of you to share information, gather your feedback, and learn how we can improve. We also have recently created a new website (www.KMSF.com), which has a wealth of information that underscores our commitment to transparency, including audited financial statements and tax returns, and provides further avenues for feedback.

Even in the swirl of debate and the noise that comes from often unfair criticism, I remain proud of the work we do together and how KMSF has been an instrument of so much good on behalf of so many people. I want you to share this pride, and I hope that you do, because we have so much of which to be proud.

Because of KMSF, hundreds of jobs in our community have been saved and created; affordable access to health care across our Commonwealth has been expanded; and we’ve used the resources generated through our collective efforts to retain and recruit an incredible cadre of clinicians and researchers.

Our mission has always been to support each other, our patients and students, and the institution we serve. That was true almost 40 years ago when KMSF was founded. It is true today. I believe it will remain true – and deeply relevant – tomorrow and for many years to come.

Thank for your efforts and your continued faith in what we accomplish together.

Marc Randall, MD
President
Board of Directors
Kentucky Medical Services Foundation, Inc.

8/16/2016 11:55:53 am

Thanks again for this addition Mole Sauce. It looks like Marc Randall said: if it works for Capilouto, why not me? Sorry, I wasn't buying Dr. Capilouto's Gettysburg address and I am not buying Dr. Randall's.

I would like to know if this means that they are now acknowledging that KMSF is a part of the university? I suspect not. It most probably is some attempt to say: "see how open and transparent we are. So you can trust us to not misuse this hospital/university/taxpayer revenue."

I also love the way he tries to suggest that the open records requests they have chosen to fight in court either have something to do with patient information or attorney client privileges. I don't think so.

Finally, I hope his KMSF medical services is of higher quality than his proofreading.

8/16/2016 12:38:33 pm

I think the strategy here is to throw out as many convoluted scenarios, hypotheticals and theories as possible in the hope of having the court find something that IS exempt from the Open Records Statute. And then that will be the basis on which they claim exemption for things they don't want to reveal going forwards.

So the court will be presented with a kitchen sink style argument claiming exemption for any of all of the following theories: "not part of the university or personal private healthcare/educational information, or protected business records or records from meetings where no decisions were made or incomplete records or records that are subject to attorney client privilege" or anything else I have forgotten.

Are all of the cases being tried by the same circuit court judge? Any idea who this is or if he is likely to be sympathetic to the University?

8/16/2016 01:29:10 pm

Thanks again for the comment Mole Sauce. I have no idea who is judging these cases. Maybe another blog reader might have that information.

8/16/2016 04:31:25 pm

I've worked at UK for over 15 years, have lived through multiple fairly bad university presidents, and sad to say Capilouto is the worst. This guy has no backbone. It appears that the friggin lawyers are running the university, and you know what they say about 5000 lawyers at the bottom of the ocean. Who the heck would offer this guy a multi-million dollar parachute in his new contract? Where is Matt Bevin when you need him? Time to clean house.

8/17/2016 02:47:12 am

Thanks for your comment FT. Like you, I am wondering what the basis was for Dr. Capilouto's 48% raise and any kind of golden parachute. This all occurring at a time when he raised tuition by another 5%. Was there ever a year that he has been president of UK that they did not raise the price of going to school here? I don't think so. Since 2005 the average tuition has steadily increased by 95% (from $5,896 in 2005 to $11,438 for the upcoming year) http://www.kentucky.com/news/local/education/article83755792.html.

8/17/2016 10:50:00 am

The state provides such a tiny amount of the operating budget of the university that the only way the university can grow and improve is to use its ability to generate funds through athletics, healthcare and tuition. Unfortunately this then attracts "business-minded" individuals who you don't like, because they want to operate the place like a business and they expect to be paid business executive salaries. This situation has played out at "state" universities all over the country. Its not unique to UK. Personally I think that part of the reason UK has been so aggressive about the open records issues is that they want to use this to force a broader discussion about the university relationship with the state. Does providing 6% of the budget buy 100% control over everything to do with the operation of the institution?

8/17/2016 11:28:58 am

Thank you for your comment Mole Sauce. I see you have once again misrepresented myself and I suspect many other commenters in the blog. Let me state it again for you, “we are not complaining about the amount of the salary and bonuses these people are receiving”. We all know they are ridiculous. Our complaint is one that radiates throughout the contested open records requests, and that is the simple lack of the transparency required by law.

Secondly, I do not care if only .0001% of the budget is state contributions; by receiving this money the university falls under a completely different set of laws than private schools. Furthermore, all of this so-called “big business” is being performed on state property and in buildings owned by the state. The bottom line for me is, if anybody wishes to hide these parameters from the public I say, go and work for a private hospital where it is perfectly legal to do so. Furthermore, if other “state universities” do not require this transparency, once again I say, feel free to find a job in one of these. I find it interesting that both Dr. Capilouto and Dr. Randall freely toss around the term transparency in their monologs, but history clearly demonstrates that they are willing to spend lots of time and money in legal fees in an effort to avoid it.

8/17/2016 03:34:05 pm

We all understand your position. The point I am making is that the long term goal of the university may well be to change the "law" so that in return for ever decreasing state support UK gets more financial autonomy and less state/public oversight. You could look at the arrangements that the university of Virginia has with the state of Virginia as an example and there are even more examples of public universities where the healthcare operation has been separated from state oversight (North Carolina, California). How would you feel about that?

8/17/2016 05:46:38 pm

Thanks for the comment Mole Sauce. Repeating myself, I personally feel that if you wish to be a university and hospital independent from the state then find a piece of property, buy it, build a campus and hospital on it, give it whatever name you wish and run it however you wish. The taxpayers of this state have, over a very long period of time, invested a large amount of money into this university. Simply because at this date and time a few capitalistic minded individuals at the top of the current food chain wish to capitalize on the years of public investment into this university does not make it right.

8/17/2016 03:53:03 pm

Take a look at this.

https://www.propublica.org/article/breaking-away-top-public-universities-push-for-autonomy-from-states

8/17/2016 05:43:00 pm

Thanks for the comment Mole Sauce. This is an interesting article, but we are not there yet. I personally feel that if you wish to be a university and hospital independent from the state then find a piece of property, buy it, build a campus and hospital on it, give it whatever name you wish and run it however you wish. The taxpayers of this state have, over a very long period of time, invested a large amount of money into this university. Simply because at this date and time a few capitalistic minded individuals at the top of the current food chain wish to capitalize on the years of public investment into this university does not make it right.

8/18/2016 05:30:50 am

On the other hand, one of the reasons why UK is not as good as the other top public universities around the country is that the amount of money invested in it by the "taxpayers" over a long period of time has been insufficient. The student accommodation, many of the buildings, classrooms, laboratories were woefully decrepit. Do you think fixing this was the "right" think to do? None of this is black and white, right and wrong. Probably the next barometer reading of where things are going will be to see what happens when out of state enrollment exceeds in state. Presumably you know that currently 38% of undergraduates at UK are out of state and I bet that will be higher this year. What do you think about that?

spoon snake

8/17/2016 04:18:01 pm

In acknowledgment of the very low level of state support being provided to them as a portion of their operating budgets, Penn State and Pitt managed to get themselves classified as "state-related" universities which exempts them from Pennsylvania's right to know law. The information they have to release is extremely limited. If you want to know how well that worked out just ask Jerry Sandusky.

8/17/2016 05:29:53 pm

Thank you Spoon Snake for your comment. Jerry Sandusky, now if there ever was a reason for not releasing state oversight of a university, this might be it. Of course we have state oversight and the ongoing Joe Harwood coverup, so I am not sure we are much better off.

Bill

8/17/2016 06:17:59 pm

Wow, good activity on this blog. As a faculty member at this fine university I personally would not like to see it give up state oversight. I feel one of our primary missions is the education of all of the youth of this state and not just the upper middle class and upper class students. I have to believe that the more you let the capitalists take control of the university the more elitist it becomes. Tuition is currently foreboding. I can't imagine what it would be like if we let the capitalists run the university. Capilouto spends his time bragging about bringing in these honor students, but perhaps he should think about focusing on the other 98% of the students who may not be classified as brilliant or who come from less advantageous backgrounds. Most of these pay their tuition through student loans. I would have to believe that the more independent we become from state oversight the fewer of these students we will be educating.

Jelly Fox

8/18/2016 06:16:04 am

Bill, I assume you realize that last year almost 40% of the undergraduates enrolling at UK were from out of state and I bet this year it will be pushing 50%. How do you feel about this? Does it fit in with your laudable idea that UK should be serving the "youth of the state"? Do you think this is what the taxpayers want? If the state are going to push back and rein in Cpilouto and Co it seems to me that this would be something to go after.

Bob Fossil

8/18/2016 04:36:58 am

Don’t worry Bill. There is more chance of UK winning the SEC football than there is of UK becoming an elite institution. Socialism versus capitalism, populism versus elitism, faculty governance versus “the administration” state universities versus private universities, open records versus secrecy, state control in the face of dwindling state support..society’s and academia’s ills laid bare. Capilouto clearly wants to try to turn UK into a top tier public research university and he has also said he wants it to be a regional choice while actively courting out of state students. Presumably the target group are people who like college basketball and living on campus in new dorms but can’t get into UNC, Michigan, the California publics etc as an out of state student and don’t mind paying over the odds for a middling at best educational experience. Neither Capilouto or T. Tracy (who seems to be getting off lightly while the blame for everything is heaped onto Capilouto and Karpf) have any practical experience managing undergraduate education. Even their “flagship” honors college/program is a leaderless flop. UK is like some of the patients I see every day- it should be at death’s door but somehow it just keeps staggering along.

8/18/2016 12:07:37 pm

Thank you Bill, Jelly Fox and Bob Fossil for your comments. Sorry about the delay in posting them. It is clear that we have 2 major things working against us in Kentucky with respect to this student population problem, and they are state population and state poverty. According to the 2013 census we are listed as 26th in population with CA, TX, NY, FL, IL, PA, OH, GA, MI and NC being the top ten. All these top 10 have more than twice our population and CA has 10 times our population. We fare even worse with respect to wealth, ranking 47th in the latest figures. Now if you think wealth and education are not correlative, where do you think the state of Kentucky ranks with respect to level of education? If you guessed 47th, you win the jackpot. Therefore, I would hope that our priorities would be in educating the youth of Kentucky. Clearly that would pay the biggest dividend in the long run for this state. Unfortunately, if Mole Sauce etc. are accurate in their statistics and the apparent administration priorities, we appear to be heading in the opposite direction.

8/18/2016 12:29:40 pm

I am shocked to learn that KY is 47th in wealth despite all of the massive salaries and secret bonuses being paid to all of our university/UKHealthcare administrators.

I bet out of state enrollment this year is approaching 50%. Makes Capilouto's "University for Kentucky" slogan sound a bit hollow.

8/18/2016 01:38:36 pm

Thanks for the comment Mole Sauce. Hmmm, I bet if these salaries and bonuses were not kept secret we might move up to 46th. They probably don't count South Sea Island offshore accounts in this tally. :-)

8/18/2016 12:23:56 pm

http://www.kentucky.com/news/local/education/article42613506.html

In 2015 39% of incoming freshmen and women at UK came from out of state. Apparently they are mostly from Indiana, Ohio and Tennessee.

Anonymous Reader

8/19/2016 03:59:15 am

"About 20 years ago a high UK administrator on the health side was listing 3 reasons why UK should stay a public university instead of seek legislation to become a private university. After listing the first two reasons came the third, irreplaceable reason: being a public university UK has legal sovereign immunity as a part of state government. If Capilouto and crew start trying to float the idea of 'UK doesn't get enough state money to warrant being subject to the Open Meetings/Open Records laws,' make sure he is forced to address that UK can't have it both ways, having sovereign immunity but escaping the commensurate responsibility of Open Meetings/Open Records oversight of its conduct that is protected by sovereign immunity."

8/19/2016 04:03:47 am

Thanks for the comment Anonymous Reader. Interesting dilemma for the Pres.

8/19/2016 05:28:51 am

Excellent point! I am pretty sure I have made this point previously.
The maximum award permissible from the KY board of claims is $200K.
http://boc.ky.gov/Pages/Frequently-Asked-Questions.aspx

So in addition to never being able to win an enforceable verdict that would allow him to practice medicine at UK, the most Kearney could possibly get after all of these law suits is a measly $200K.
I'm sure MIke Karpf has that sort of cash lying around in his office.

Also, all of this is a negotiation. The State and UK will just have to come to some sort of an agreement that they are both equally dissatisfied with. Many of the other examples I have given became state-related universities so they could retain some benefits while ditching provisions they didn't want to adhere to. This will not be a "having it both ways" situation.

8/19/2016 08:28:35 am

So here is the latest Herald Leader article concerning KMSF's claims of independence from the UK: http://www.kentucky.com/news/local/education/article96631937.html

8/19/2016 08:52:59 am

Its all very sensational but I am still not reading anything that alleges any violations of state or federal laws. Some of the expenses may seem decadent but are they actually illegal? Buying a box at Keeneland just supports the local economy. Paying for tickets to UK Athletics just recycles the money back to UK. Flying may be the most time effective way to travel around the State. Joe Craft has his own jet so letting him hitch a ride in a turboprop plane is hardly a scandal. Haiving legal representation in a medicaid negotiation with the Federal Government is just due dilligence. Using KMSF funds to pay for Dean's initiatives in the COM is probably the only way they can be supported. The only possible issue I can see is the working around of the State procurement laws. Maybe that is what they are concerned about hiding?

8/19/2016 09:01:44 am

Thanks for your comment Mole Sauce. I guess my question is, why shouldn’t KMSF be required to be a part of the University of Kentucky. I repeat my argument: the hospital is part of the University of Kentucky, the hospital was built on state property and the money taken in by this hospital is technically the property of the University of Kentucky. The taxpayers of this state have, over a very long period of time, invested a large amount of money into this university and its hospital. Simply because at this date and time a few capitalistic minded individuals at the top of the current food chain wish to capitalize on the years of public investment into this university and keep the means by which they are doing it secret, does not make it right. Either join the university KMSF, or find some other private hospital to run.

8/19/2016 09:36:33 am

I think you and Linda Blackford care a lot more about the university than the "taxpayers of the state" and the Tea Party governor they elected do. Her efforts to stir up some outrage among state lawmakers generated some pretty anemic quotes. Even if KMSF were part of UK, what would happen then? Aside from you and your friends being outraged that people earning $500-1000K/year are getting free trips to Keeneland, Capilouto and the BOT and whoever they hire to replace Karpf will still control all of the money.
Anyway, I need to get back to writing a grant because I am certainly not getting any of the KMSF/Dean's funds to support my research. I will be having a nice dinner tonight with one of UK's biggest (non athletic) donors. I hope nothing happens before I can get my reimbursement for what is sure to be an excessive amount of money spent on food and drink back from KMSF :-)

8/19/2016 11:32:08 am

Thanks for the comment Mole Sauce. Like I have mentioned multiple times, I really am not interested in the salaries and bonuses the physicians and hospital administrators make. What I, and hopefully many of the other blog readers, am interested in is transparency and a level playing field. Why should the hospital and a portion of the College of Medicine employees be exempt from the rules everyone else is required to play by? If KMSF being a part of the university wouldn't change anything, then I would think you might also be all for it.

Well I have to go and make dinner. I'm charging my dinner to the Social Security Agency. They don't ask for receipts. This retirement is tuff stuff. Have fun at the dinner and good luck with your grant.

8/19/2016 02:35:31 pm

I am a physician and although I might be an exception to the rule, I am all for KMSF coming under the oversight of the university. I recognize the possible negative ramifications, but I don't see that happening. Market value is what drives physician salaries so I am sure this change would not affect them. What it might impact is the salaries and bonuses of non-practicing physician administrators, and hopefully put some performance evaluation on these folks. I am all for that.

8/19/2016 05:44:09 pm

Thanks for the comment TB. I am in complete agreement on that. Like you, I do not think oversight will change much at the Medical Center or College, but hopefully will improve transparency and accountability.

8/20/2016 06:36:00 pm

Now here is an interesting situation. The man (Attorney General Andy Beshear) the University President (Eli Capilouto) and his General Council (Professor/Adjunct Instructor Thro) have been actively battling with over these open records requests, is now the one that is actively battling (taking his case to the Kentucky Supreme Court) to save us from Governor Bevin's university budget cuts.
http://www.kentucky.com/news/politics-government/article96411312.html

Maybe Professor/Adjunct Instructor Thro might think twice next time before he insults the office of the Attorney General in his arguments.

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"UK defies logic, law to keep secrets"

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