LOOKING INTO THE UC BUDGET -- Report #21a (email version)
by Charles Schwartz, Department of Physics, University of California
Berkeley, CA 94720. 510-642-4427 April 16, 1997
SUMMARY
The story of one regent's misconduct is evolving into a larger
drama that highlights the fundamental principle of academic freedom
and challenges the integrity of the University of California's top
leadership.
Charles J. Soderquist, one of the Alumni Association
representatives on the UC Board of Regents, a graduate of UC Davis
and now a successful Sacramento businessman, was the author of the
recent letter that began:
Dear Professor Schwartz;
Unless you can explain to me how the "public service" mission of the
University is met by your "reports," I request that you stop using
University envelopes (and paper, postage, computers, desks,
electricity &c) in their preparation and dissemination.
In Report #21 I presented a collection of opinions from faculty
members and others from all the UC campuses, responding to this
regent's letter. This follow-up Report presents the letters I have
written to the Chairman of the Board of Regents, requiring that they
take formal action on this one regent's attempt to intimidate and
silence a UC faculty member and whistleblower.
The most troubling aspect of this affair has been the total
silence from the President and the Chancellors as well as the other
Regents - those officials who bear the primary responsibility for
defending the climate of academic freedom at this University. This
indicates that they have chosen to hide behind a stonewall and let
their lawyers handle this problem.
NEWS BREAK
This morning's San Francisco Chronicle carries a story on this
affair: "Gadfly Professor Challenges Cal Officials;Regent's criticism
of whistle-blower stirs up protest," by Pamela Burdman; page A17.
The article quotes Mr. Soderquist: "Clearly, I wrote him a little
letter addressing what I thought was this question of using
university envelopes and whatnot."
One thing is clear: many people throughout the University - not
just me - read that letter from a regent as something considerably
more onerous than an innocent inquiry about the use of UC envelopes.
Stay tuned in for further developments.
_ _ _ _ _
Here is my letter of complaint sent to Tirso del Junco, Chairman
of the UC Board of Regents, with copies to President Atkinson and
Regent-Designate Soderquist.
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March 18, 1997
Dear Regent del Junco;
I am writing to you to file a formal complaint against another
individual who sits with you on the Board of Regents. The enclosed
letter, from this regent to me and dated 9 March 1997, is the subject
of this complaint. The text of the letter is as follows:
Dear Professor Schwartz:
Unless you can explain to me how the "public service" mission of
the University is met by your "reports," I request that you stop
using University envelopes (and paper, postage, computers, desks,
electricity &c.) in their preparation and dissemination.
As to the value of your efforts, my brief time with the regents
indicates that no one is listening. Perhaps your time could be
better spent on research and/or teaching. You do teach and perform
research, I assume.
The legal basis for my complaint is found in California
Government Code Section 8547, which is known as the "Reporting of
Improper Governmental Activities Act." This law provides
protection for whistleblowers by declaring that an officeholder in a
state agency "may not directly or indirectly use or attempt to use
[their] official authority or influence ... for the purpose of
intimidating, threatening, coercing, commanding, or attempting to
intimidate, threaten, coerce or command any person for the purpose of
interfering with the right of that person to disclose" improper
governmental activities.[8547.3(a)] The Reports which I have been
writing and distributing for some time constitute, if I may be so
immodest, a paradigm of studious whistle-blowing; and the present
letter to me from this regent is, in turn, an exemplar of the
behavior which this law forbids. This state law applies to the
University of California, providing that the procedures for filing
reports and complaints within UC differ somewhat from those covering
other state agencies. From the relevant University policy statements
(Academic Personnel Manual Section 190 - Appendix A; Business and
Finance Bulletin Section G-29), I conclude that since the offending
party in this case is a regent, this complaint should be filed with
the Board of Regents for their investigation, consideration and
action.
I would note that when the Board of Regents comes to consider
this matter in formal session, as it must, the meeting may not be
conducted out of the public view. (See California Education Code
Sections 92030-92032 and Regents ByLaw 14.6) I would also bring to
your attention the fact that the cited whistleblower protection law
allows for both civil and criminal penalties, as well as University
sanctions, upon the perpetrator.
Aside from the legal aspects of this complaint, there is the
most important matter of academic freedom. This principle is so well
understood throughout the academic community - and the violation of
academic freedom posed by the present letter from this regent is so
apparent - that I should not need to dwell upon this topic here.
However, I do note that the letter sent to me by this regent was also
cc'ed to yourself, as Chairman of the Board of Regents, and also to
Dick Atkinson, the President of the University. Why neither of you
has contacted me about this matter is worrisome.
.....
Please contact me (510-642-4427) if you have any questions
concerning this complaint; and please keep me posted on the progress
of your investigation and proceedings.
The law requires that this complaint be filed "together with a
sworn statement that the contents of the written complaint are true,
or are believed by the affiant to be true, under penalty of perjury."
I do so swear.
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Two weeks later I had received no response and so I sent the
following letter, again with copies to Atkinson and Soderquist.
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April 2, 1997
Dear Regent del Junco;
This letter is a follow-up to my phone call to your office
today, in which I left the following message: "When can I expect to
receive your reply to my March 18 letter, in which I filed a formal
complaint against another regent[?]" That complaint centers around
the letter dated 9 March 1997 sent to me by Regent-Designate Charles
Soderquist.
At a minimum, I expect you to inform me of the procedure and the
timetable for the handling of this matter.
As to the timing, I call your attention to the fact that Mr.
Soderquist is due to become a full-fledged voting member of the Board
of Regents on July 1. It seems to me that, in order to protect the
integrity of the Board of Regents in its obligations to the
University community and to the public, this matter ought to be
resolved by that date. To put it bluntly, if Mr. Soderquist is to be
judged unfit to serve the office of regent, it would be best that he
be removed from the Board before, rather than after, any
contamination might occur.
It is now 3 1/2 weeks since the original offending letter was
sent to me, with copies sent to you and to President Atkinson. I had
entertained the hope that one of you would contact me in an attempt
to resolve this matter - which involves fundamental principles of
academic freedom as well as other issues - by more informal and
collegial means. However, since I have still heard nothing at all
from any UC official it now appears likely that you and your fellow
regents intend to "play hardball." Therefore, in order to prepare
myself appropriately for what may lie ahead, I have begun discussions
with an attorney who can assist in the prosecution of this affair.
Still, I am open to dialogue, which is always the preferred mode of
conflict resolution, especially in a University.
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Two more weeks have now passed and still there is no response.
I expect they have turned this matter over to the General Counsel,
where it will be handled in the fashion of lawyers on the defensive:
stonewall, deny, minimize, obfuscate, delay, delay, delay. This is
probably the way members of the Board of Regents are used to handling
their own business affairs; but is this any way to run a great
university?
Here is the most troubling part of this story. When I sent out
the first email, containing the text of the regent's letter and
asking people for their opinions on how one ought to respond, I
wrote, "and I also make a particular request for responses from
each of UC's nine Chancellors, since they are the chief officials in
charge of protecting the climate of academic freedom on the
campuses." I sent an individual FAX to each UC Chancellor drawing
their attention to this particular request. Not one of them has
responded to me in any fashion.
We know that when some students get carried away in a political
protest and breach the rules by disrupting or threatening some
academic activity, then the Chancellors and other responsible
officials are quick and loud in their public condemnation of such
behavior. And we know (or believe to be true) that when an irate
citizen writes a letter to the University calling for the ouster of
some professor who has expressed an unpopular opinion on some
controversial topic, then the Chancellor will respond with a letter
explaining to that citizen the principle of academic freedom and its
importance to a democratic society. But in the present case, where
the person who has issued a threat directly to a member of the
faculty - thus demonstrating his complete ignorance of, or his
disdain for, that central principle of academic freedom - is one of
the Regents, then we find a wholly different behavior on the part of
the President and the Chancellors of this University. They are
completely silent.
What a terrible precedent this sets. What a disturbing message
this sends to all other professors at the University of California,
and elsewhere! This is the larger issue raised here. Beyond the
matter of Regent-Designate Charles Soderquist vs. Professor Charles
Schwartz we must ask what this implies for the climate of academic
freedom at UC when all its top officials appear willing to tolerate
this violation.
A PREVIOUS EXPERIENCE
The University has an extensive set of rules and procedures for
handling all sorts of complaints and grievances; but how things work
when the accused is someone very high up in the UC administration is
quite another matter. Here is one example.
At a meeting of the Regents' Committee on Audit a couple of
years ago, I had the opportunity to suggest that the University needs
some sort of Inspector General, an officer to conduct independent and
rigorous investigations of alleged misconduct no matter how high up
the finger might point. The newly appointed University Auditor, Mr.
Patrick Reed, responded that his office already had such authority.
President Peltason backed him up, stating that UC's internal auditors
"have full and complete authority of an Inspector General, ... they
are able to investigate ... fearlessly what is brought to their
attention." At that time I expressed my skepticism but said that I
would put the present system to a test.
I then wrote to Auditor Reed, filing a formal complaint of
improper governmental activities on the part of certain high level
University of California officials. My purpose here is not to go
into the substance of that complaint but to describe how the
complaint was handled.
In my letter to Mr. Reed I suggested that he ought to engage
independent outside legal counsel to assist him in this matter,
"since the Office of the General Counsel of the Regents would be in a
position of conflicts of interest here." And in a telephone
conversation with Mr. Reed a while later he candidly acknowledged
that conflict of interest situation on the part of UC's General
Counsel.
Nevertheless, a few days later, Mr. Reed wrote me his formal
response, saying that he had referred the entire matter to General
Counsel Jim Holst. I then made repeated inquiries of Mr. Holst's
office asking when I might expect to hear from him on this matter;
but I never received even the slightest acknowledgment from him.
I then wrote a letter to Auditor Reed, with copies to the
President and the regents on the Audit Committee, complaining about
this travesty. I never got any response at all.