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...."