On April 27, 2016, a personnel letter from UC President Janet Napolitano to UC Davis Chancellor Linda Katehi spelled out the UC President’s decision to place Ms. Katehi on administrative leave and hire Melinda Haag, a former federal prosecutor, to conduct an internal investigation into the allegations laid out by Ms. Napolitano against UC Davis’ Chancellor.
A few days after the release of the letter from UC President Napolitano, on May 2, 2016, ProPublica published a story that has been overshadowed by the Katehi matter, as well as by the UC Berkeley sexual harassment scandal.
In what ProPublica characterizes as a “secret 2015 report,” UC Regent William De La Peña, a medical doctor, “tried to negotiate a deal between his eye clinics and UCLA, and engaged in discussions in which he had a financial interest. He denied wrongdoing but resigned as chair of the regents’ health committee.”
However, he was allowed to keep his seat on the Board of Regents “despite a secret investigation that concluded he violated ethics rules by trying to strike a financially beneficial deal between his eye clinics and UCLA, part of the university system the regents oversee.”
ProPublica posted a May 3 update, noting, “After this story ran, the University of California responded to our Public Records Act request, filed in January, and released the investigative report and exhibits related to Regent William De La Peña. They were redacted by the university and can be found here.”
A letter dated March 25, 2015, was sent from Daniel M. Dooley, Special Acting Systemwide Locally Designated Official, who copied among others UC Regent Chair Bruce D. Varner and President Napolitano, and who was appointed to oversee the investigation of whistleblower complaints against De La Peña.
In the letter he summarized the findings of Keith Rohman, of Public Interest Investigations, who agreed with the findings which found “Regent De La Pena’s conduct to be a substantial violation of Regents Policy 1110 regarding conflicts of interest. Pursuant to the University’s Whistleblower Policy, this clearly constitutes an improper governmental activity.”
As Mr. Dooley notes in his letter, “The complaints raised a number of questions about Regent De La Pena’ s conduct related to the potential acquisition by UCLA of Regent De La Pena’s ophthalmology clinics.”
The specific questions raised by the complaints were:
- Did Regent De La Peña repeatedly request that Dr. Feinberg find a way to purchase his clinics outside of the Regental process?
- Did these alleged efforts by Regent De La Peña include a suggestion to orchestrate a sale of his clinics to the Doheny Eye Institute weeks before the UCLA Doheny deal to avoid a conflict of interest on his part?
- Did Regent De La Peña retaliate in any manner against Dr. Feinberg as a consequence of his refusal to involve UCLA in the purchase of his clinics?
Mr. Dooley in his summary writes, “Based upon findings in the report, I find that Regent De La Pena continued to engage in discussions regarding the Doheny deal after Regent De La Pena had been recused from participating in the matter. I also find that Regent De La Pena continued to pursue alternative scenarios by which Regent De La Pena’s clinics could be turned over to UCLA, up to the time of the January 2014 Regents meeting. I accept the investigator’s finding that Regent De La Pena did not retaliate against Dr. Feinberg and UCLA for Dr. Feinberg’s refusal to involve UCLA in the purchase of Regent De La Pena’ s ophthalmology clinics.”
He adds, “The facts are clear that Regent De La Pena engaged in a series of discussions about a potential transaction in which he had a financial interest, from October 14, 2013 through and including the January 2014 Regents meeting.”
Of course, in a May 10, 2015, letter to President Napolitano and Board of Regents Chair Bruce Varner, Dr. De La Peña writes that he had “serious concerns about the version of the facts set forth in the memorandum dated March 3, 2015 from Keith Rohman to Daniel Dooley dealing with supposed retaliation against Dr. Feinberg and conflicts of interest.”
In the letter, De La Peña notes that when he was approached about leasing space from his eye clinics, he contacted UC General Counsel Charles Robinson, telling him, “I did not want to do anything that was wrong or inappropriate under UC’s policies and that I wanted everything to be ‘completely above board.’”
Dr. De La Peña writes, “Despite my request during the call of October 30, 2013, Mr. Robinson does not claim to have ever sent me his conclusions or advice.”
He adds, “From my standpoint, no one ever told me that UCLA was not interested in pursuing, after the Doheny deal would close, an opportunity with me. Many months later, after the so-called whistleblower complaint was received, Mr. Robinson told both me and Chairman Varner that I should not worry about the complaint.”
But at issue here is the UC President’s handling of the matter involving Regent De La Peña versus the handling of Chancellor Katehi’s matter.
When the Vanguard asked UC Spokesperson Dianne Klein about that letter, she stated that its release “did not violate personnel confidentiality policies.”
She also suggested this was a routine release, writing, “As a general matter, when media request University documents that could affect the privacy rights of individuals, California law requires us to balance the public’s interest in the disclosure of records relating to public business against an individual’s interest in non-disclosure.”
“One factor that influences this balance is the nature of an individual’s position. The higher the level of one’s position, the greater likelihood that the balance tips in favor of the public interest in disclosure,” she explained.
She added, “In light of the many weeks of media attention arising from Chancellor Katehi’s leadership, UCOP determined that, in this case, the balance favored disclosure when the letter was requested.”
However, the handling of a potentially criminal conflict of interest case involving UC Regent William De La Peña and an allegation of a potential conflict of interest suggests something altogether different.
In contrast to her response to our question about the Linda Katehi matter, when ProPublica asked why this report had been kept confidential, Ms. Klein wrote, “The outcomes of whistleblower investigations are not routinely announced publicly.”
“The investigation was carried out according to UC policy,” she wrote. “His resignation [from the committee] was consistent with what sanction the investigation recommended.”
The results of the matter involving Regent De La Peña were kept secret for over a year, only released after a report by ProPublica and then only in redacted form. The letter from President Napolitano to Chancellor Katehi was released the same day to the Sacramento Bee without even the need for a formal Public Records Request.
—David M. Greenwald reporting