Commentary: Has UC Totally Lost High Ground on Katehi Investigation?

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Chancellor Katehi in February
Chancellor Katehi in February

In the days and weeks following the following the San Bernardino shooting, the FBI became embroiled in a legal battle that they thought they would easily win in attempting to force Apple to open the iPhone belonging to gunman Syed Rizwan Farook.

But Apple fought them to a win in the court of law and a win in the court of public opinion.  When the FBI failed to get a court order to access the data, they were able to hack into the iPhone on their own and access the data themselves.  The result was they found nothing of significance and the whole exercise turned out to be a four-month waste of time.

For those who wish to draw a comparison between Janet Napolitano’s former job as head of the Department of Homeland Security and her current one heading up the University of California, she is giving ample ammunition.

The current battle being waged in the pages of the Sacramento Bee is bogging down, strangely in a similar fashion to how the US Department of Justice’s battle proceeded.  When we spoke to Linda Katehi’s attorney Melinda Guzman, she told the Vanguard that they were not turning over the chancellor’s university-issued cell phone, iPad and laptop due to concerns about attorney-client privilege and lack of assurances from UC’s investigators about how it would be used.

UC Spokesperson Dianne Klein two weeks ago told the Vanguard, “We are disappointed that Chancellor Katehi and her counsel have repeatedly said they were unable to meet with investigators. Likewise, they have not provided investigators with access to the University owned devices — cell phones and iPads — that may well contain information germane to the investigation.”

She told the Bee recently, “This is standard in every investigation.”

But this looks more like a fishing expedition than an investigation.  They already have access to emails and phone records from the university, and the need to explore text messages seemingly suggests that they have found nothing through a simple exploration of emails and phone records to incriminate the chancellor.

Melinda Guzman has used heated language such as “police state” on multiple occasions – language that is probably over-the-top, given the nature of this investigation.  But the attempt to draw the link between UC tactics and FBI tactics should not be completely lost.

Spokesperson Larry Kamer, like Ms. Guzman, is claiming that the chancellor will not turn over the equipment because it could contain communications legally deemed privileged.  He told the Bee, “If the Office of the President is trying to deny her right to private and confidential communications, they are in for a major fight from us.”

It is not clear how this matter would be resolved.  When asked if this issue would be litigated, Ms. Guzman would not commit either way.

Ms. Katehi’s legal team told the Vanguard that the equipment would not be turned over unless UC agrees to allow her to remove emails that her team deem privileged information which could include those from her lawyer, doctor, medical provider, priest or husband.

Moreover, they have cataloged these messages in case a judge would need to review them.

What makes these claims more tricky is that, unlike the San Bernardino terrorist case where they were dealing with a personal cell phone, this is university-owned property.  That means, technically speaking, the phone is owned by the University of California, not Linda Katehi.  It also means that the phone should have been used in conjunction with university functions only, not private personal ones like communications with a doctor or, perhaps, even an attorney.

The Sacramento Bee this morning is reporting that Ms. Katehi and her team have asked to be able to choose who would decide which messages are privileged.

Ms. Klein told the Bee, “They would hire the person to take out what they want to take out and give it back to us, and that is not acceptable, nor is it in any way independent.”  Instead, UC has asked the chancellor to pick from two vendors of their choice.  “They can give email and phone numbers to the vendor that reflect privileged information, and that information would be segregated out.”

This suggests that the Bee has already fallen for the chancellor’s contention that some messages are privileged.  UC is acknowledging that this is not a criminal investigation where they would go into her personal cell phone or gain a search warrant.

But the issue already exposes one problem for UC – they lack a policy on how investigations are to be conducted as well as a policy for how electronic property owned by UC would be handled in cases such as these.

In our view, this whole battle looks bad for UC.  They are fighting over cell phone records, willing to allow some messages to be privileged – the whole question that has to emerge is whether UC has any evidence at all to back up their allegations.  The longer this drags out, the more opinion may shift against UC.

There is also a question of how much money this is costing UC.  Last week, Dianne Klein told the Vanguard they do not have an estimate on the total cost of the investigation.

They did tell the Vanguard that the investigators are billing at $595 per hour, “while those who review documents will bill substantially less.”  As we have suspected previously, the cost of the investigation is not coming from state or tuition dollars.  UC has an Evergreen Fund that appears to be from private sources to fund the investigation.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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59 thoughts on “Commentary: Has UC Totally Lost High Ground on Katehi Investigation?”

  1. South of Davis

    David wrote:

    > They did tell the Vanguard that the investigators are billing at $595 per hour,

    The politically connected that do work for the government are a long way from people trying to get by in the “fight for $15″…  At $595/hr you are making $23,800/week, over $100K/month and over $1.23 MILLION a year…

    Maybe they can make a deal with Katehi where they fire her and give her another job that pays more like they did with Napolitano when she was fired from Homeland Security to make almost twice as much at UC (making more than President Obama).

    1. Barack Palin

      Oh, but we’re supposed to look the other way because the money for the investigation is coming from something called the Evergreen Fund.

      It all comes out of the same UC pot but some people are trying to justify the costs of this witch hunt by saying it’s not from state or tuition dollars.

      1. David Greenwald Post author

        It doesn’t actually come out of the same pot, I don’t know why you keep saying that. But it’s not really the most important issue here either.

    2. Jerry Waszczuk

      David

      What is this Evergreen Fund. Is this mean that some private outfit has right to to see how the investigation is progressing and access to the university confidential and privileged information.

      I think that the investigation is being paid from the Employment Liability Fund but who knows what UCOP  is doing .Napolitano is Master of Disaster together with Melinda Haag and McGregor Scott.

      http://www.ucop.edu/risk-services/_files/gl-funding-15.pdf

       

        1. Barack Palin

          So did these people want their private donations to go towards the Evergreen Fund for things like investigations or is that where UC just happened to put them?

           

          1. David Greenwald Post author

            I don’t know the answer to that – you’re welcome to follow up. There is a far more important story that you’re diverting attention from.

    3. rwx

      I wonder if Katehi is simply stalling until the presidential election in the hopes of leaving UCD for a high position in the Clinton administration. She’d fit right in.

      1. DavidSmith

        Quite the contrary. It is Napolitano who is stalling the investigation into UC’s policies on external board positions of top UC administrators. It is Napolitano who is deflecting pressure put on her due to the UC Berkeley sex harassment scandal because she couldn’t touch the Berkeley Chancellor. Napolitano is diverting people’s attention and winning herself time by wrongfully alleging Chancellor Katehi so that she could go back to Washington DC.

        Think about it. Napolitano is a life politician and never worked for an academic institution before. Why would she want to serve the UC? Chancellor Katehi was an extremely accomplished scholar with numerous publications and awards, and has serviced public higher education institutions all her life. Which one do you pick?

    4. Fred

      $595 an hour for an investigation of this nature is actually on the cheaper side. Top attorneys at Orrick bill over $1,200 an hour.
      As reference here is  a recent article http://abovethelaw.com/2014/01/the-biglaw-firms-with-the-highest-partner-billing-rates/

  2. Tia Will

    David

    UC has an Evergreen Fund that appears to be from private sources to fund the investigation.”

    What is the likelihood of finding out what these private sources are ?

    1. South of Davis

      Tia wrote:

      > What is the likelihood of finding out what these private sources are ?

      Does anyone know of a Billionaire that wants their kid to be Chancellor of UCD?

      Billionaire Warren Hellman helped his son in law become Chancellor of UCSD but he wanted him to have a more prestigious job so the (lifelong Republican) “just happened” to become 1. The largest donor to Democrat Gray Davis and 2. The largest University of California donor in a single year and his son in law “just happened” to get picked as the new UC President.

      After his son in law divorced his daughter Hellman pulled some strings and got him canned as President of UC.

       

  3. Jerry Waszczuk

    Chancellor is on administrative leave and is  not terminated to turn in  the university properties like , card key, phone , laptop or iPad.  Napolitano’s April 27, 2016  did not even mention that Chancellor has no right to enter the  campus or other campuses premises  or she required  to turn in UC properties during investigation ,

    I spent over one year on the  investigatory leave for only reason to make me confess or find  whether  I know or  I have information  regents  together with Chancellor Vanderhoef and few others  misappropriated  $65,000.000.  I did not confess because I did not know anything about than regents let me go in December 2012 with the  request to turn in all the  university properties I possessed.  This how it is works .

    The UCOP is trying to find out whether  Chancellor with the information she has on phone , laptop and  iPad could incriminate cronies from the  UCOP.   They should sent Matt Carmichael or somebody  to the Chancellor office  before Napolitano’s  issued Administrative  Leave Letter and get what they asking now for. Stupid. Chief of the Homeland Security.  No wonder that Obama dumped her . Unbelievable.

  4. Misanthrop

    “If the Office of the President is trying to deny her right to private and confidential communications, they are in for a major fight from us.”

    I thought use of employer equipment was subject to search by employer? Why would she be exempt from such oversight? I never liked it but its why people have personal accounts for email, that is kept separate from their work email, so that their bosses can’t pry into their personal lives.

    Why doesn’t Napolitano get help from her old friends at the NSA? Don’t they keep complete records of everyone’s electronic communications.

    1. Barack Palin

      I never liked it but its why people have personal accounts for email, that is kept separate from their work email, so that their bosses can’t pry into their personal lives.

      Ha ha, is that why Hillary had a personal email account set up?

  5. Misanthrop

    Did Katehi go rogue? The ex-head of Homeland Security trying to search the electronic communications of a University Chancellor who was trained by the FBI in controlling student dissent. Its like Three Days of the Condor or the paranoia of a Thomas Pynchon novel. Definitely should be in the truth is stranger than fiction category.

  6. SODA

    Let me get this straight. Napolitano asked Katehi to resign; she seemingly refused; Napolitano put her on paid leave during investigation (which is more than half over) and because she was not terminated she is allowed to not turn over her electronic devices? If she had been terminated as at will employee she would have had to turn them over as any other terminated employee often escorted to their desk and asked to empty it along with a security person. What would constitute ‘privileged’ communication?  If at will, why didn’t Napolitano terminate originally? What is role of Regents here?

    1. Jerry Waszczuk

      Soda

      Upon termination Chancellor has to turn in all university properties if some memo of understanding between her and university does not states otherwise . In many cases university let people to keep laptops or other stuff  upon retirement. Depend .  As you see regents are staying neutral and silent from the beginning of the feud between Napolitano and Katehi .  Napolitano did get any help from regents . She turn on one of them who is regents  De La Pena  than what you expect. She used against De La Pena the former UC Senior Vice President Daniel Dooley as  a investigator in the case  after Dooley retired from university.  Napolitano probably will go to the drain together with Chancellor.  She set her up  turning the Homeland Security skill  on regent and Chancellor .  Who next ? Governor of  the State of California who is the President of the  Board of Regents . It is not working this way in the University of California

       

    2. DavidSmith

      Because Naplitano didn’t have the power or incentive to terminate Chancellor Katehi. The investigation was basically a tactic of intimidation, and for that Napolitano should be investigated for mis-use of university funds.

      1. Misanthrop

        Napolitano didn’t have the power to terminate Katehi? Do the Regents make the final call? So which one are the Regents going to fire? Because I don’t know how both are retained. Do the Regents reinstate the one that has had a bunch of legislators call for her head? The one who has repeatedly embarrassed the University she serves, tried to cover it up and lied to her boss about it or do they fire her boss who screwed up on the firing? Seems like a no brainer to me.

        1. DavidSmith

          Misanthrop

          There is the power on paper, and there is the real power that one can actually wield. There is a subtle difference. Consider how much backslash Napolitano would face if she fires a UC Chancellor without concrete evidence of significant wrongdoings? Napolitano has a political career that she still wants to pursue (not in the UC for sure) and she would be out of her mind to fire the Chancellor at will. That’s why she actually called Katehi into her office and asked her to resign which the Chancellor obviously refused. You asked the obvious question of why Napolitano didn’t fire Katehi on the spot. The answer is that she couldn’t without damaging herself. She has the power on paper, but without bringing everyone on-board (the Regents, the academic senate, and perhaps some legislators), that power stays on paper.

          We all have different opinions on whether the Chancellor should resign at that moment and we can debate over it. But Napolitano made an extremely bad move to bring on the investigation and started the smearing campaign against the Chancellor.

  7. PhillipColeman

    Whenever a defense attorney spends far more effort doing battle in the “court of public opinion” rather than devoting energies towards defending the client in an administrative action, that’s a red flag.

    It’s so easy for a defense attorney to do battle in the public forum, Guzman can say anything she wants to denigrate her client’s employer. Her offerings of proof for all her accusations are vague or absent. Guzman would dearly love to engage in a “process” battle as a way deflecting, diffusing and delaying the 900-pound gorilla–completion of the formal investigation. The University cannot respond to Guzman’s accusations for tactical reasons.

    The University has to be more constrained. It must accept these provocative hits in relative silence. Were the University to respond in the same vitriolic manner as their accuser, they take on the public appearance of being mean-spirited, spiteful, and vindictive towards Katehi. They can’t act until their own investigation of alleged wrongdoings is completed; otherwise it invites the later accusation by Guzman of pre-conceived bias against her client.  So, yes, the University looks like it’s lost the high-ground presently, but remember only Guzman is telling the story.

    As a casual bystander with not emotional investment in either disputant, the current behaviors point to an investigation finding that is particularly damming towards the Chancellor. There is also a suggestion that the list of alleged improprieties is growing. Every documented comment from Katehi is being matched with emerging evidence. Keep a close eye on how opposition to the revelation of the Chancellor’s cell phone records and laptop entries evolves. Then there is that very mysterious and abrupt resignation of the UCD Financial Officer just as the investigation was announced.

    For those who anxiously want to know who is the villain, and who is the publicly maligned, just wait a bit.

    1. Barack Palin

      Whenever a defense attorney spends far more effort doing battle in the “court of public opinion” 

      But isn’t that exactly what Nepalitano has also done?

    2. DavidSmith

      I think you read the situation wrong. Chancellor Katehi’s team is apparently gearing up and laying the ground work for a full-scale lawsuit.

      At the present time, because the “investigation” is still going on, they are simply responding to the wrongful allegations from UCOP and so far, UCOP’s counter-response has been pathetic.

      And really, with the way UCOP is doing the investigation and releasing documents intended at steering public opinion, I think Katehi’s team is doing the right thing.

    3. Jerry Waszczuk

      PhillipColeman

      Well said  and  I would agree with you if you would have knowledge about the UC internal investigations or administrative proceedings . When UC hire outside lawyers  to investigate that it means the preparation for the lawsuit not investigation. Melinda Guzman knows what she is doing.She did not start the “court of public opinion”   It was Napolitano who publicized letter of administrative leave . It was completely  out of line .  The letter should be marked as  a “Confidential” and never should be provided to the press . I know this stuff . I see the UCOP desperation to control damages Neapolitano caused by attacking Chancellor by the  very unprofessional and vindictive way.

        1. The Pugilist

          It seems unlikely.  But then again, she’s fighting for more than money, if she gets exonerated she may not get her present job back but may get another job.

      1. PhillipColeman

        Every personnel investigation of magnitude has the built-in potential–or even probability–of a lawsuit. And because attorneys were immediately put into action on both sides, that only reinforced the notion. There’s no dispute here that both sides are paving a roadway to the most suitable court of law. That said, we are still at the administrative level of battle.

        Supposing Napolitano followed your advice, she gave Katehi a suspension letter and did not publicize what she did. Probably somebody would very soon would wonder, “Where’s the Chancellor?” Napolitano had to say something.

        We have to remember the climate at the time of this critical moment. The Chancellor was already under intense public scrutiny and criticism. She had powerful legislators wanting her head on a pike. She had been called into the boss’s office and probed with specific questions. Napolitano had supported the Chancellor all through the earlier complaints about Katehi.

        For whatever reason, Napolitano intimately suspends the Chancellor. Somebody from the University had to say something!

        Arguably, Napolitano could have just said, “She’s on suspension and I’ve got nothing more to say.” But we can be certain that all the sordid details of the suspension would have been leaked, and embellished. Too many people knew the particulars, there’s no possible way Napolitano could not have kept this quiet or even under some semblance of limited release. So Napolitano had to say something at the outset as to why Katehi was suspended, knowing she was going to catch hell no matter how she handled it.

        1. DavidSmith

          There are certainly ways that Napolitano could have handled the situation much better without the damage that has been caused to UCD and the Chancellor.

          We are as eager as you to see what the investigation, and the follow-on lawsuit will tell us about what happened that week.

        2. Jerry Waszczuk

          PhillipColeman

          This is  not  the “reinforced the notion” . This  is California Appellate Courts decisions  stated  that the outside attorney hired for an  internal employment investigation is  a strictly preparation for the lawsuit and not much tha internal investigation.  This just  a misleading the public tactic that investigation is going on. Chancellor’s employment is at -will  as Klein stated  to the SacBee and that  Chancellor could be fired but  the UC transparency is so generous than we let the Chancellor work.  Apparently the fabricated cause and reasons  for termination were  based on nothing. The letter placing Chancellor on investigatory leave which was given to Chancellor to  deface and humiliate her and her family and to  force her to quit did not do job as intended.   On top of this the letter  was very poorly crafted with out even mentioning that Chancellor is prohibited to enter UC Davis premises (it is customary to prevent interference with investigation)

          The intimidation and humiliation  did  not work and now everything is turning into soap opera and   not very good damage control by Napolitano and Haag

      1. Jerry Waszczuk

        Ms. Barak

        Is nothing to be confuse. Just read the  Napolitano’s suspension letter she gave to Chancellor . No one word in the letter about UC properties requirement. upon suspension .  I received 10 or more administrative and investigatory leave  letter and never the  UC demanded  that I turn in  electronic equipment. My manager was ordered to fry  my private external HD USB(literally with high voltage )   because somebody got idea and  thought that  I have information  on  my HD  which  could incriminate UCDMC cronies . I was using my private PC at work because junk I got was useless and my my manager and supervisor distributed the new  purchased by UCDMC computers to their families .
        December 5, 2012
        Jaroslaw Waszczuk
        Re:      Letter of Termination

         The purpose of this letter is to inform you that I am dismissing you from your position as a Sr. Development Engineer in Plant Operations and Maintenance at UC Davis Health System effective December 7, 2012
         
        You are to immediately return all University property, including but not limited to: ID badge, keys, equipment (computers, books, cell phones, disks/manuals), uniforms and work product (electronic/paper files), etc.
         

  8. DavidSmith

    But this looks more like a fishing expedition than an investigation.  They already have access to emails and phone records from the university, and the need to explore text messages seemingly suggests that they have found nothing through a simple exploration of emails and phone records to incriminate the chancellor.

    A good point.

    Ms. Katehi’s legal team told the Vanguardthat the equipment would not be turned over unless UC agrees to allow her to remove emails that her team deem privileged information which could include those from her lawyer, doctor, medical provider, priest or husband.
    Moreover, they have cataloged these messages in case a judge would need to review them.

    This reads to me are: 1) Katehi’s team does not trust UCOP. (In my opinion, given UCOP’s behavior on this issue, they have every right not to trust it). 2) Katehi’s team is willing to release the messages, even private ones, to a judge when the fight goes to court, ie. they are not hiding anything

    Ms. Klein told the Bee, “They would hire the person to take out what they want to take out and give it back to us, and that is not acceptable, nor is it in any way independent.”  Instead, UC has asked the chancellor to pick from two vendors of their choice.  “They can give email and phone numbers to the vendor that reflect privileged information, and that information would be segregated out.”

    I’m truly confused by UCOP’s logic here. Katehi’s team called out UCOP’s investigation not independent because it wouldn’t allow a true third party investigator. UCOP ignored the request but now is accusing Katehi’s demand not being independent following the same line of logic. Are the “two vendors of their choice” considered independent? It seems to me that UCOP makes the rule whenever and wherever it suits their own desire.

  9. Fred

    Whether or not Katehi’s devices are turned in or not is not that important. They should however be imaged by a professional firm so the data is preserved for discovery in future litigation. If there is privileged material on there, that should be detailed in a privilege log and any disputes on what material privilege should apply to will have to be sorted out by a judge down the road. That leaves the real question, is Katehi obligated to turn over the non-privileged data without court ordered discovery? Probably not, but she is certainly on notice of possible litigation and needs to take steps to preserve it.

    1. Jerry Waszczuk

      Fred

      Looks like UCOP is  screaming to find out on the ipad and cell phone . The information on iPad and cell phone   could be a main factor to settle the mess created by Napolitano.  Chancellor was underestimated by Napolitano and UC General Counsel office .

      1. DavidSmith

        Jerry

        It seems that UCOP believes Chancellor Katehi orchestrated the wrongdoing all through text messages on ipads and cellphones.

        I didn’t like the word “witch hunt” but it’s increasingly looking like one…

        1. Jerry Waszczuk

          David

          This is the  exactly same scenario in  I went through with my termination.  Total “witch hunt ” and this  is the  custom procedure in UC  .

          Chancellor supposedly is employee at will than theoretically  she should be fired already.  I was employee  which I am still  not sure if I was at will or not will . I signed settlement -settlement agreement with regents in 2009 and I was employed by this settlement – agreement which was and  is only enforceable in California Courts if breached or violated .

  10. Marina Kalugin

    UC never had any high ground to start with…it was a vendetta by the Napo…and so forth….

    The Napo has got to go and even the Gov has got to go for bringing her in to crash UC…while bolstering his agendas…see other threads….already stated it all.

    See my threads which I started ….alumni support Katehi and the Academic Senate is not happy with what is being done to the Chancellor.

    Another thread was removed.

    doesn’t matter, this and other threads are way more critical…

    read, learn and choose sides wisely.

    the DV is still on the side of those who are trying to crash UCD and who have it in for the chancellor.

    yesterday was a Teamsters union Day of Action…..that is the next step after the paid protestor sit in…

    I had mentioned that, I believe, in my very first post at the end of April.

    Follow the money and find the truth…..the unions were the instigators behind the sit in….

    the “Day of Action” yesterday was the next planned step…. and  that was known and predicted by those of us who have studied such things, and have always been activists ourselves

    Currently, the Teamsters have way too much power to manipulate things at the UC>….

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