Email from John Bonine 12 January 2010
Subject: Questions to University President
To: "Peter B Gilkey"
From: "John E Bonine \(UO\)"
Date: Tue, 12 Jan 2010 15:00:42
I noticed four things recently that could be clarified for Senate members and their constituents by the University President. If you would be so kind as to seek answers, I would appreciate it. You may forward this message or post it as you wish.
- 1. First, someone in the Office of the General Counsel is sending letters or messages to you and the entire campus community without signing his or her name.
Is that practice endorsed by the President? In a collegial university and also to retain a modicum of accountability, signing a name to letters and messages seems like a basic principle.
- 2. Second, I am surprised that the University Senate President cannot request documents as you have done without using the Oregon Public Records Law.
Could you ask the President whether the Office of the General Counsel could be instructed to respond to requests of the University Senate President and perhaps other members of the University Senate without such formalities and within a week unless extenuating circumstances exist?
- 3. Third, I note that you have been told that you must pay a fee to the Office of General Counsel for documents that you request under the Oregon Public Records Law.
I would like to know whether the University President believes that charging fees to the Senate President for documents involving University business (and of interest to the Senate) is an appropriate measure taken by his Office of General Counsel or other offices in the University.
In this regard, I note that the "Office of the General Counsel," in an unsigned letter sent to you on November 20, 2009, said this about waiver of fees:
"State agencies like the University may waive public records fees in some circumstances if doing so serves "the general public," in contrast to a concern or interest of a private individual or entity." http://www.uoregon.edu/~uosenate/dirsen090/MemorandumFinancialImpactUS0910-7Motion.pdf
The unsigned letter did not cite any statute or judicial authority for this summary of the waiver authority in the Oregon Public Records Law, but the relevant statutory citation is ORS 192.440(5) and the phrase "a concern or interest of a private individual or entity" comes from an Oregon Court of Appeals case, In Defense of Animals v. OHSU, 199 Or App 160, 187-189, 112 P3d 336 (2005). The issue is also discussed at page 18 of the Attorney General's Public Records and Meetings Manual at page 18, notes 55-58, citing the Oregon Court of Appeals case. See http://www.doj.state.or.us/pdf/public_records_and_meetings_manual.pdf .
I would think that the test of public versus private benefit ORS precisely support grants of fee waivers to requests made by the University Senate President on matters of potential interest to the University community -- or, for that matter, others who are seeking transparency in University operations and not simply trying to gain personal benefit.
Your practice as University Senate President of posting materials on the publicly available World Wide Web where the constituents of the Senate as well as others may read them would seem to support further a conclusion that a request is in the "public interest" and the "interests of the community" rather than merely for private benefit.
- 4. Fourth, on January 8 someone (unidentified) in the "Office of the General Counsel" sent out an "Election Reminder" email to the whole community that makes statements of "state law" involving elections.
I would like to know whether the University President considers such unsigned emails from the Office of the General Counsel to be orders issued under his authority to individual faculty members that must be obeyed, legal advice to faculty members, or something else. In a community of scholars, in which the faculty are, by
University Charter, in charge of the immediate governance of the University including its discipline, it is important to be clear on such matters.
In considering an answer to this, I offer the following thoughts, which include pointing out at least one legal error in the Jan. 8 email.
a. Orders to faculty
It may be that the Jan. 8 email purports to issue orders to the faculty. It says "you can't" do certain things. Does the Office of General Counsel or someone in it have the power to issue orders to the faculty? Put another way, does the President consider that violation of the injunctions in the Jan. 8 memo can be the subject of university disciplinary action against faculty members, simply because the prohibitions are contained in an unsigned memo from someone in the Office of General Counsel? If so, is that consistent with the University Charter and the model of governance that it sets forth. Or are the disciplinary standards for faculty only those that are adopted formally in a participatory process?
b. Legal advice
It may be that the email is intended only as well-intentioned legal advice regarding state election law, by someone in the Office of General Counsel. However, if this is the case, it is weak, for it provides no citations or support for its legal advice. If the various "you can't" statements are drawn from words of the statute, the statutory subsection should be cited. If the "you can'ts" are drawn from court interpretations of the state law, we should know which court opinions stand for which "you can'ts." If the "you can'ts" are drawn from official Opinions of the Attorney General of Oregon, we should have the citations for each statement.
The professional standard for legal opinions is that they be accompanied by supporting documentation of authority. This is especially true for reasons of transparency and accountability when counsel for a public body gives legal advice implicating public interests. Those interests, of course, include academic freedom and freedom of expression under the Oregon and U.S. Constitutions.
On the other hand, if some of these statements are simply statements by someone in the Office of General Counsel that it would be politically inadvisable to do certain things -- that is, that for employees to do certain things might get the University in political trouble -- then this advice should be stated as such, and probably should not come from the Office of General Counsel.
c. Erroneous orders or legal advice by Office of General Counsel
Whether the Jan. 8 email is intended to be an order to faculty or legal advice, it is important to note that parts of it are wrong.
The phrase "This means" in the email below, following a reference to state election law, goes far beyond what the state election law actually says or means. For example, the Jan. 8, 2010, email states that state election law "means" that:
"YOU CAN'T post political posters or flyers in public work spaces or facing out on doors or windows."
The General Counsel to the President told me the opposite in an email dated Oct. 27, 2008, regarding a similar statement that she sent out to the university community prior to the Nov. 2008 election. She wrote:
"As you are probably aware, that is not a prohibition based on statutory restriction. It is a UO decision (not mine). Because it has been some time and some of the decision-makers had changed since UO decided that was appropriate policy, I asked the question again. The decision remains unchanged. The basis for the restriction is a belief that UO should provide a welcoming environment to students regardless of their political beliefs. When students see political posters or flyers in public work spaces, it is likely to be unclear if the materials express an employee's personal beliefs or the university's support or opposition to a candidate or ballot measure."
I have been unable to find any official UO policy on this matter. But even assuming that such a policy exists, I think that emails to the faculty from a lawyer working for the University should be careful in stating what is required or prohibited by state election law and what is a UO policy, and not conflate the two. Laypersons often repose a great deal of trust in lawyers.
From: firstname.lastname@example.org [mailto:email@example.com]
Sent: Friday, January 08, 2010 10:41 AM
Subject: [HR] Election Reminder from the Office of the General Counsel
An Election Reminder from the Office of the General Counsel
Just a reminder -- state law prohibits use of public funds to advocate for or against a ballot measure or candidate and prohibits state employees from requiring other employees, on the job or off, to support or oppose a ballot measure. This means:
YOU CAN provide balanced, objective informational background on ballot measures, but
YOU CAN'T spend work time advocating or opposing a ballot measure or candidate.
YOU CAN use your own time, including lunch hours or coffee breaks for political work, but
YOU CAN'T use state resources (copying machines, faxes, computers, postage) for political work on a ballot measure or to help a candidate.
YOU CAN wear campaign buttons at work, but
YOU CAN'T post political posters or flyers in public work spaces or facing out on doors or windows.
YOU CAN write letters expressing your opinion on ballot measures and candidates, but
YOU CAN'T use your university title in a way that suggests you represent the University's position.
YOU CAN discuss your political opinions with co-workers during breaks or away from work, but
YOU CAN'T require or coerce those who you supervise to take a position or participate in political activities.
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