LOOKING INTO THE UC BUDGET -- Report #21b (e-mail version) by Charles Schwartz, Department of Physics, University of California Berkeley, CA 94720. 510-642-4427 May 5, 1997 SUMMARY Update on the controversy that started when one of the UC regents sent a letter trying to muzzle this critic. Presented in this Report are: ¥ A letter from the University's top lawyer - the expected brush- off. ¥ My response, addressed to the Chairman of the Board. ¥ Comments by Regent-Designate Soderquist, and comments by some other regents, that have appeared in recent newspaper stories. ¥ Remarks on the general prospects for constructive whistleblowing at the University. ¥ Some stories about the sad fate of other UC whistleblowers. MORE LETTERS After receiving that Letter from Regent-Designate Charles Soderquist, with its intimidating "request" that I stop using University resources to produce and distribute this series of Reports, I circulated copies via email to many UC people asking their opinions on this. Report #21 presented the lively responses. In a letter to the Chairman of the Board of Regents (see Report #21a) I lodged a formal complaint against this one regent and cited California law and UC policy that require the Board to investigate and consider disciplinary action against that particular regent. Here is the first formal response from the University, coming, as anticipated, from the General Counsel of the Regents. -------------------------------------------------------------------- University of California Office of the General Counsel April 15, 1997 PROFESSOR EMERITUS CHARLES SCHWARTZ Department of Physics Berkeley Re: Complaint of Retaliation for Whistleblowing Dear Professor Schwartz: I am responding on behalf of Regent del Junco to your letter of March 18, 1997, which quotes Regent-Designate Soderquist's letter to you of March 9, 1997, and asserts that the letter violates section 8547.3(a) of the Government Code. I have reviewed the March 9 letter carefully and am unable to conclude that it was written "for the purpose of intimidating, threatening, coercing, commanding or attempting to intimidate, threaten, coerce or command" you for the purpose of interfering with your right to disclose improper governmental activity. Assuming, arguendo, that any of your writings discloses any improper governmental activity, an inquiry such as Mr. Soderquist's, as to how the public is served by them does not, in my view, intimidate, threaten, coerce or command anyone, nor does the "request" that you not use University resources in the preparation and dissemination of your reports. Similarly, an expression of the writer's estimate of the value of your efforts, however negative, does not evidence an intent to intimidate, threaten, coerce or command you. Subdivision (b) of Section 8547.3 of the Government Code provides some help in determining the meaning of the words used in subdivision (a) of section 8547.3. It provides that the use of official authority or influence prohibited by subdivision (a) "includes promising to confer, or conferring, any benefits; effecting or threatening to effect, any reprisal; or taking, directing others to take, or recommending, processing or approving, any personnel action, including, but not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action." I do not see in Mr. Soderquist's letter the conferral or promise to confer of any benefit or the effecting or threatening to effect of any reprisal. No personnel action has been taken or directed or recommended or processed or approved. Because on its face your letter falls well short of an allegation of retaliation for whistleblowing, I do not believe that any investigation, consideration or other action by the Board of Regents is necessary. Sincerely, James E. Holst General Counsel cc: R. C. Atkinson T. del Junco C. J. Soderquist -------------------------------------------------------------------- One can read Holst's letter as saying: We aren't going to do anything about this and if you don't like that, sue us. But what a waste of time and taxpayers' money that would be. So here is my response, addressed to the Chairman of the Board of Regents -------------------------------------------------------------------- April 30, 1997 Dear Regent del Junco; On March 18, 1997, I wrote to you filing a formal complaint of misconduct on the part of Regent-Designate Charles Soderquist as evidenced by his letter to me dated 9 March 1997. I have received a letter from General Counsel James Holst, dated April 15, purporting to be a response on your behalf to that complaint. Mr. Holst's letter makes sense only if one imagines that it was written by a lawyer engaged by Mr. Soderquist personally to defend him in the face of these charges. Mr. Holst, however, is not Mr. Soderquist's personal attorney but rather the chief lawyer employed to represent the interests of the University of California. As such, his letter ill serves the University in several aspects: (1) Mr. Holst's stated criterion - "No personnel action has been taken ..." - would allow any management person within the University of California to engage in acts that are "intimidating, threatening... or attempting to intimidate, threaten,..." any subordinate employee who might consider acting as a whistleblower. The promulgation of such a ruling can only defeat the central purpose for which the whistleblower law, and its supporting UC policies, were enacted. (2) Mr. Holst's interpretation of Mr. Soderquist's first sentence as an innocent "inquiry" and an innocuous "request" makes a mockery of common sense. Let me remind you of that first sentence. 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. (3) The overall impression given by Mr. Holst's letter is one of a high-handed dismissal of a legitimate complaint, motivated by an arrogant assumption that regents are above the law. Indeed, Mr. Holst's letter carries the implication that any regent may take a poke at any UC faculty member with impunity - a sort of droit du seigneur. The responsibility to maintain the integrity of the University lies with the Board of Regents. I can understand the personal discomfort that this situation may present to members of the Board - the prospect of having to hold a formal public hearing to consider disciplinary action against one of your own. Yet it is your duty to do just that and further attempts by you and your colleagues to evade that duty can only further damage the reputation of the Board of Regents and, consequently, harm the reputation of the University of California. I note with some satisfaction that Mr. Holst, in his letter to me, raises no objections at all to the jurisdictional and procedural requirements which I asserted, explicitly and implicitly, in my March 18 letter to you: that The Regents have the authority and the duty to take disciplinary action against a member of the Board, when warranted; that such a process requires a formal meeting of the Board, which must be held in public session; that existing UC policy implementing the whistleblower law points to the Board as the proper authority to pass judgement in this case. It is thus up to the Board of Regents, and not up to its lawyer, to make the judgments as to the intents, purposes, severity and consequences of Regent-Designate Soderquist's action, after taking all available evidence and testimony into account. I refer you to my Report #21, which presents the views of many colleagues throughout the University who read Mr. Soderquist's letter to me as being far from benign in its purpose. Further evidence of Mr. Soderquist's desire and intention to bring an end to my whistleblowing activities is given in his own recent statements, as reported in the Sacramento Bee on April 17. (See enclosure). Furthermore, note that Mr. Holst makes no comment at all about the second basis for my complaint: the violation of canons of academic freedom and the threat that this poses to the University. This issue ought to be of even greater concern to you, as it is to me, than the issue of the whistleblower law. As I wrote to you on April 2, it will be best for the University to have this whole matter resolved soon, before Mr. Soderquist becomes a voting regent on July 1. Sincerely yours, Charles Schwartz Professor Emeritus Enclosure cc: President Atkinson Regent Designate Soderquist -------------------------------------------------------------------- One type of "personnel action" cited by Mr. Holst as indicative of retaliation against a whistleblower, but which he denies that Mr. Soderquist has undertaken, is "performance evaluation." Yet look again at Mr. Soderquist's original letter: "Unless you can EXPLAIN TO ME how the 'public service' mission of the University is met by your 'reports' ... " (emphasis added.) He is explicitly calling for a performance evaluation; and it is one in which he will be the judge. What is more, this same quotation contains the most offensive part of Soderquist's letter: that any member of the Board of Regents would assume the authority and the competency to evaluate the academic work of any member of the faculty! I refer, of course, to the fundamental principles of academic freedom and intellectual independence that are so vital for a university. Further elaboration of this issue is expected to come from the Committee on Academic Freedom of the Academic Senate - Berkeley Division, which is now looking into this case. RECENT NEWSPAPER COVERAGE Reporters with three major newspapers in northern California have written substantial stories on this affair: Pamela Burdman in the The San Francisco Chronicle (April 16), James Richardson in The Sacramento Bee (April 17) and Renee Koury in The San Jose Mercury News (April 27); and these provide some interesting new statements from Regent-Designate Soderquist. Here is what the Chronicle reported: In response to a reporter's inquiry, Soderquist left this voicemail message: "Schwartz is entitled to his personal view as a citizen, no doubt about it. God bless America. "Clearly, I wrote him a little letter addressing what I thought was this question of using university envelopes and whatnot. I don't get to use university envelopes, and I'm a regent." Colvin, the UC spokesman, said yesterday that Soderquist is entitled to his own supply of university envelopes and stationery. For the Bee, however, Soderquist had quite a different explanation about his letter: He [Soderquist] said he wrote Schwartz because he believes his antics have eroded the credibility of other critics who should be taken seriously. "His actions diminish or trivialize others who ask questions," said Soderquist. "The regents themselves have a responsibility to be probing and adding up the numbers. I'd hate to think people would think we are relying on an amateur snoop. We should be asking these questions ourselves." ... Soderquist said that when he wrote the letter, he was unaware that Schwartz was retired, and therefore has no teaching duties. "I didn't tell him to stop anything," said Soderquist. He's a nice old guy. I don't have it out for Charlie Schwartz." The Mercury News was able to report only that "Soderquist did not return a reporter's phone calls seeking response." Rachel Brem, a reporter for Synapse, the UC San Francisco campus newspaper, conducted a number of interviews looking into the question of how other regents regard my efforts. Here are some excerpts from her April 17 article. Schwartz jokes that he studies the Regents with "a scientist's approach ...looking for contradictions, something to make a fuss about." The more fuss Schwartz makes, it seems, the less Regents hear. In conversations about Schwartz, several Regents say that they feel little obligation to respond to his concerns. "He's lost all credibility, because he doesn't act in accordance with any social mores," said Regent William T. Bagley, alleging that Schwartz would "scream and yell" at Regents' meetings several years ago. (Schwartz laughs that "I've been known to be less than totally decorous," but specified, "I occasionally speak out of turn, but I never disrupt the meetings.") Bagley said, "There are 32 million people in the state of California, and you can't listen to all of them. You discern who is credible, and you listen to them." When asked what criterion he used to decide who is credible, Bagley replied, "The way to get our attention is to become a person of professional competence." Other regents also dismiss Schwartz as more or less an old kook. Regent Meredith Khachigian described her colleagues tuning out Schwartz at Regents' meetings: "He's retired and doesn't have much else to do...We just get used to it after a while." "He just comes to meetings and we let him talk," said Regent Frank Clark. "I've never paid him any attention." Of the specific proposals and criticisms Schwartz makes, many Regents have little to say, because they don't read the reports he sends them. Schwartz is not blind to his status as an outsider. "I'm sure that among conversations of Regents there are many making fun of Charlie Schwartz. And that's fine," he said. "But it's a set of attitudes. They're the 'in group.' And no person on the Board of Regents wants not to be in the group." Student Regent Jess Bravin has a similar perspective. Among the regents, Bravin said, "anyone who doesn't agree is an outsider. Anyone who has a different point of view is belittled - that's a problem with the system, not with Professor Schwartz." ... Other Regents will reiterate his questions themselves at board meetings - which Schwartz called "a big victory" - and some grudgingly acknowledge his role as a voice of opposition. "Anyone who presents the opposite side of the question is contributing," said Regent S. Stephen Nakashima. "I've never discussed him with other Regents, but...he's bringing out issues that some of us may not have thought of." And returning to the article in the Chronicle we also read: Meanwhile, at least one regent, Berkeley law student Jess Bravin, is prepared to defend Schwartz to his colleagues. "Professor Schwartz gives gadflies a good name," he said. "Frankly I wish more of our emeriti took such a detailed interest in the operations of the University of California." When I started this undertaking, nearly five years ago, I thought it would be useful for someone who knows the University but is not inside the university administration to learn about the financial details of UC operations and try to inject an informed oppositional voice into the debates over budgets and related policies. I had no delusions about finding a welcome from those who usually monopolize the data and the policymaking about University money - the President, Vice Presidents, Chancellors and Vice Chancellors. Nor did I expect that regents would be inclined to pay much attention to someone who is not among their own chosen executives. But attending their (often tedious) meetings did give me many insights and clues on where to seek more interesting data; and the introduction of Public Comment sessions provided the irresistible opportunity for this professor to give many three- minute lectures for anyone in the room who might be receptive. As a research project, I have found this undertaking to be full of interesting challenges and unexpected discoveries. And as the feedback from colleagues around the University grew, it became clear that the publication of this series of Reports was valued by many others. Judging from the regents' comments quoted above, it appears that Mr. Soderquist is not far off in his assessment: "As to the value of your efforts, my brief time with the regents indicates that no one is listening." Certainly I must take responsibility for my own shortcomings, in style and personality as well as intellectual capacity. Yet the important question to be raised here is, Why have those people responsible for the management of this public treasure, the University of California, been so negligent? I would emphatically repeat the wish expressed by Jess Bravin, the current Student Regent, that more emeritus professors should take up this kind of work. Regent-Designate Soderquist seems to think that my continuing antics as an "amateur snoop" (One friend reminded me that Sherlock Holmes was a great amateur snoop.) spoils the field for other more responsible critics. The whole point of being a critic or a whistleblower is to stand independent of the hierarchy in command. I only got into this work because nobody else was doing anything of the kind; and I would be happy to be replaced by better performers. SOME SAD STORIES OF WHISTLEBLOWERS AT UC For a Professor Emeritus there is not a great deal of personal risk in playing the whistleblower/critic/gadfly. But it may be quite hazardous for almost anyone, including tenured faculty members, who feel the need to challenge their superiors inside this University. Here are, very briefly, three stories that I have gathered from newspapers. Carol Chatham, Marilyn Killane and Debra Krahel were staff members at UC Irvine's fertility clinic when they tried to report to their supervisors, in 1994, that they had uncovered evidence of unauthorized transfers of clients' eggs and embryos, and other wrongdoings. For their conscientious efforts they were variously harassed, transferred to lesser jobs, placed on administrative leave and fired. Ultimately, this scandal blew up in the newspapers, and a flood of lawsuits followed: patients suing UC and UC suing the doctors who ran the clinic. UC lawyers settled with these three whistleblowers for almost $1 million, to avoid even larger potential damages in wrongful termination lawsuits, but required that these three never work for UC again and that they never talk about what happened (a condition that was rescinded when they testified before the Legislature.) After paying attorney fees and other expenses, the women estimated that they were left with about two years' severance pay. But their careers were ruined and their lives severely strained. Chatham: "What do you put on your resume? Whistleblower?" Killane: "I feel like I have WB carved right here" [touching her forehead.] Krahel: "How do you explain (to your kids) that doing the right thing doesn't mean happily ever after?" [from articles in The Orange County Register 7/6/95 - 2/23/96] Wallace Smith, a professor in UC Berkeley's School of Business Administration since 1959, was fired at the beginning of this year. This appears to be only the third time in UC's 128-year history that a tenured faculty member has been dismissed. After a meeting with the regents last November President Atkinson wrote Smith that he was being punished "for intentionally and without justification failing to teach two assigned courses during the 1995-96 academic year." Professor Smith claims that the two courses assigned to him "did not exist" and that the dean was "riding him out on a rail" because of his whistleblowing. Indeed, in letters he had written to campus officials in 1994, 1995 and 1996 Smith charged Dean William Hasler with specific financial improprieties - which allegations were later confirmed by an official audit that culminated in a public scandal with the Dean and the Chancellor trading charges. UC officials insist, however, that there is no connection between the Hasler scandal and Smith's being fired. [from The Wall Street Journal, January 8, 1997.] Robert Bradfield was a professor in Berkeley's Department of Nutrition but his salary was paid by UC's Agricultural Extension Service. Bradfield was fired by AES officials the first time in 1969 after he had proposed a study of nutrition among Mexican- Americans in California's central valley. "They had received complaints from Fresno County that my work was irritating growers," Bradfield stated. After winning a Guggenheim Fellowship for a similar study of minorities' nutrituion, Bradfield was reinstated by the UC vice president for agricultural sciences, only to be fired again after he had complained about AES officials' censoring a film on Mexican-Americans to remove all mention of Cesar Chavez and the farm workers union. Reinstated again, Bradfield continued to complain that the AES refused to hire qualified blacks and Chicanos. After a long series of harassments - including blocking all of Bradfield's research projects, forbidding him to teach or to attend scholarly conferences, intercepting his mail, moving his files and laboratory equipment out of his office - AES officials fired him a third time in 1977. Despite a series of federal investigations, lawsuits, criticisms from Legislators, and a series of stinging editorials in the Sacramento Bee, the UC president took several more years to acknowledge that there were some problems at AES that should be fixed. Meanwhile, Bradfield, suffering in health and broke, settled his lawsuit against UC for a reported $95,000, along with the customary requirement of silence. [from the Los Angeles Times 4/10/78; Sacramento Bee 3/78 - 11/79; The Sunday Times (Walnut Creek) 10/15/78] The last-cited newspaper story leads off with this quote from the Government Accountability Project: "...It's a near certainty that, wherever a whistle keeps blowing, an injured whistleblower is not very far behind...."