Which Would be Worse?

September 25, 2008, 6:40 a.m.

Which Would be Worse?
So, what happened yesterday? Oh, not much, just:

o UI Vice President Phil Jones -- a 40-year employee who was planning on retiring next spring anyway, and was peremptorily fired Tuesday -- is appealing that decision to the Board of Regents as "wrongful termination," and released through his lawyers a statement of the reasons why, e.g., "It is indeed ironic that Phillip E. Jones is being terminated and criticized for failing to act when the university's athletic department was doing everything in its power to keep this matter 'informal' and prevent the dean from acting on a formal complaint based on an EOD investigation."

o UI General Counsel Marc Mills -- a 20-year employee who was also fired Tuesday, and who sent a 10-page letter of protest to the UI president and Regents -- has now hired his own lawyer.

o James Bryant, the Stolar lead investigator, has been thrown into defensive mode as he endeavors to respond to Marc Mills' criticisms of the firm's Stolar Report.

o The University, and the Board of Regents, are both refusing to release a copy of the Mills' letter to the media notwithstanding the media lawyers' assertion it is a "public record" under Iowa law that cannot legally be withheld and that "Mills said Wednesday that when he sent the memo he gave permission for it to be made public."

o Mark Schantz, a former UI General Counsel (1992-2005), says Mills was "thrown under the bus."

Schantz said he is upset about how Mills was treated and called the Stolar report "quite wrong" in some places and that some omissions with regards to Mills testimony were made consciously. Schantz particularly had issue with the rapid terminations. . . .

"This is not the way the university usually proceeds. I haven't heard of anyone being summarily dismissed short of a felony without at least telling their side of the story."

Former law school dean Bill Hines is quoted as saying that for President Mason to peremptorily fire two long-term employees three business days after the Stolar Report appeared, for "an episode that began last year . . . seems like an almost indecent speed to find someone to blame things on."

Meanwhile, before resolving any of the above, the Regents are going ahead with their special meeting today to review the University's response to the Stolar Report, and to conclude this portion of their review of President Sally Mason's first year on the job.

A blockbuster buried in Brian Morelli's story is "I believe the decision was made by the regents, at least in the case of some, before they even saw the report," he [Mark Schantz] said." Of course, I cannot know (a) if Schantz said that (he's certainly never said it in my presence), or (b) if his assertion is true. How could I know? But neither do I have any reason for believing that it's not true. And it is confirmed in some ways by former UI interim President Gary Fethke, who supports President Mason's firing of Jones and Mills:

"I don't know there was any other alternative at this point," Fethke said. "I think she made the choice she had to make at this point. . . .

I think she had to go to the meeting with something, a credible and forceful response," he said. "Either she makes the decisions or they will be made by someone else."

"I believe the decision was made by the regents." "Either she makes the decisions or they will be made by someone else."

Source for quotes: Brian Morelli, "Jones appeals to Board of Regents; Says AD officials tried to keep assault allegations informal," Iowa City Press-Citizen, September 25, 2008, p. A1. And see, Editorial, "More Questions to Answer, More Policies to Fix," Iowa City Press-Citizen, September 25, 2008, p. A9 ("Suddenly, rather that having faith in the Stolar report's conclusions, we're experiencing a new round of he said/she said."); Lee Rood and Erin Jordan, "New lawsuit, firings face Mason amid work review," Des Moines Register, September 25, 2008 ("Sheldon Steinbach, a Washington, D.C., lawyer and former general counsel for the American Council on Education, said he had read the Stolar report and believes Jones and Mills were scapegoats, fired to protect Mason's job and to move on from the controversial story. 'In the heat of passion, with the spotlights of the media and public on you, the easiest thing to do is fire somebody,' Steinbach said. 'It's a desire to smooth the water and get off the front page of the newspaper. That's all fine except for the people summarily executed.' Steinbach said he believes the university has exposed itself to wrongful-termination lawsuits.").

Commentary: Which Would be Worse?

Why do I say those quotes from Schantz and Fethke constitute a blockbuster?

One of the biggest, and so far largely unaddressed, issues in all of this is yet another "which would be worse?" dilemma.

Earlier, in Nicholas Johson, "Rational Responses to Stolar and Global Finance," September 20, 2008, I wrote "Would it be worse that neither the University president, nor anyone else in administrative positions, has thought to review its organizational structure and procedures for handling football players' sexual assaults over the past six years? Or would it be worse that a review was conducted during President Mason's first year in office but no one thought of any of the obvious remedies proposed by Stolar?"

Now we have another.

Was President Sally Mason, in effect, ordered by one or more members of the Board of Regents to fire Marc Mills and Phil Jones? If so, that would of course raise all kinds of governance questions about the propriety of the Board intervening in that way, questions I've written about so often and at such length that I'm not even going to provide the links to those discussions once again.

But put those serious concerns aside for a moment and focus on President Mason.

Let me preface this discussion by noting that my former beloved University of Texas Law School Dean, Page Keeton, made quite a reputation for himself standing up to a very tough Board of Regents, threatening to resign over matters of principle when he thought they'd stepped over the line. He never had to resign.

Now let us consider which would be worse: (1) That President Mason, after one year on the job, personally and unilaterally chose to peremptorily fire two University vice presidents with more than 60 years service to the university between them -- over a matter that has far more to do with the University's organizational structure and procedures (and football culture) than the behavior of any given individual (as even the Stolar Report concedes) -- or that, (2) being inappropriately told to do so by the Regents, she simply "followed orders" and took actions she knew to be wrong and did not personally support, rather than standing up to the Regents and threatening to resign if they persisted?

As Senator Joe Biden said in Iowa City during the primary season, "There are some things worth losing elections over." Well, there are some things worth losing one's job over. This may very well be one.

Permit me to note that I have not joined the chorus of those suggesting that firings are the answer to this -- firing some regents, the UI president, the football coach. I haven't suggested anyone be fired.

But I would note that a common response of those who defend the firing of Mills and Jones in the face of the assertions of others that this is not the way we handle such things (e.g., Mark Schantz, above: "I haven't heard of anyone being summarily dismissed short of a felony") is to cite cases of firings at other universities.

For example, The Gazette concludes its story this morning,

The Chronicle of Higher Education has reported in recent years on such situations at other universities. The University of Colorado at Boulder eventually lost its athletics director, football coach and President Elizabeth Hoffman — now the provost at Iowa State University — after two women claimed they were gang raped by football players and recruits at a 2001 party.

And Eastern Michigan University lost three leaders, including the president, over the handling of a rape and murder of a student in 2006.

Diane Heldt and Erika Binegar, "Former Dean Says He Was Wrongfully Fired," The Gazette, September 25, 2008, p. A1, available as earlier online version, "UI Official Says He Was Wrongfully Fired," September 24, 2008, updated 11:46 p.m.

I would simply note that at least in each of these two cited cases the university president was also fired. (And see the comments of Sheldon Steinbach quoted in the Register's story by Rood and Jordan, above.)

. . . And there's more of this blog entry to come, because the Athletic Department has been ruled out of bounds once again in a major way with regard to a series of decisions totally unrelated to this mess.

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