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. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- Two weeks later I had received no response and so I sent the following letter, again with copies to Atkinson and Soderquist. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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.