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.
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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
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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
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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
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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...."