Monday, July 26, 2010

UC Employees Get SLAPPed ?!

they don't know much about Bagley Keene -- but they think they know about SLAPP - Strategic Lawsuit Against Public Participation- how convenient:

UC Davis Uses Anti-SLAPP Provisions To Kill Prof's Discrimination Lawsuit (2009)

Former UCD Police Officer SLAPPed For 20K in Fees in Civil Rights Suit (2010)

UC Davis Principles Apparently Also Include the Undermining of Civil Rights Protections for Employees (2010)

UC Execs Could Do With Some Education of Their Own- by Thomas Peele

One of the best editorials I've seen on the matter:
UC execs could do with some education of their own- by Thomas Peele
EARLIER THIS month, University of California officials barred a documentary filmmaker from videotaping a public meeting of the Board of Regents in violation of a bedrock state access law, the Bagley-Keene Act.

It was a pretty plain abuse. The law is unambiguous: anyone may record a state meeting. Permission, identification and statement of purpose are specifically not required.

Yet the filmmaker, an Angeleno named Ric Chavez, was made to jump through hoops like a show dog by a trio of university flaks before the door was slammed in his face. Then, incredibly, a top spokeswoman who barred him said she had never heard of the act that governs public access to meetings of state bodies.

I asked this spokeswoman, Lynn Tierney, who works in the office of the University President at a 2009 salary of $220,623, to explain her actions. She didn't reply.

For that much money one might expect Tierney to know that the law requires her to stay out of the way if someone shows up with a camera at a public meeting. That she claims not to know this is appalling.

According to coverage of the flap in the San Francisco Chronicle, Tierney told Chavez he couldn't tape the meeting because he was not a legitimate member of the press. "We don't know why you're bringing the camera in," the Chronicle reported her saying to him.

Chavez is making a film about the university. He could have told her he wanted footage to bore his kids to sleep. Or to teach a parrot to mock public officials. It didn't matter, not one bit.

The university's top lawyer, Charles Robinson, tried to explain the matter in a mealy-mouth letter to the Society of Professional Journalists. UC's "current policy on media coverage dates to 1975," he wrote. It will be reviewed and updated, he added "to be fully consistent with California open meeting laws."

The Bagley-Keene Act was passed in 1967. All that a university policy can do is require more access than the law, which is simply the minimum possible requirement. That a "policy on media coverage" is needed is ridiculous on its face. The official policy on press freedom is the First Amendment.

If we leave it up to people such as Tierney to decide who is a legitimate member of the media and who isn't, we're lost.

The Supreme Court was even unable to make such a definition. In its landmark 1972 decision Brazenberg vs. Hayes, the court refused to grant journalists a protection of federal subpoenas, saying to do so would force a definition of who received the privilege was extended.

"Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods," Justice Byron White wrote in the decision.

Call Chavez' camera a modern-day mimeograph.

We live in the age of the independent journalist. Chavez had no less right to record the meeting than I would have as an employee of a newspaper publisher.

What happened to him is even more egregious when the very mission of the university to educate and enlighten is considered. Freedom comes in all forms. The university grants tenure to professors so they may commit acts of intellectual honesty without retribution, yet its gatekeepers think they can act as censors.

How would they have reacted if it had been a documentary film student from Berkeley's graduate school of journalism who showed up with a camera in San Francisco? Would the same challenge of legitimacy have been made?

At a time when the ever-changing news industry means more and more journalists work independently — blogging, writing for websites, making films — knowledge of laws such as the Bagley-Keene Act are more important than ever.

This fall, for the first time, the journalism school is requiring incoming students to take a class in public records and public access. It will be taught by two veteran professors and me in my capacity as a part-time instructor at the school.

Maybe the gatekeepers could swing by and take some notes. Videotape it if they want.


Monday, July 19, 2010

Project On Govt Oversight (POGO) Comments on Arnold and UC Whistleblower Legislation

Jul 19, 2010
California Whistleblowers Receive Some Rights

Yesterday, Governor Arnold Schwartzenegger terminated the lack of whistleblower rights for employees of the University of California. The Governator signed S.B. 650, amending the California Whistleblower Protection Act to correct the California Supreme Court’s decision in Miklosy v. the Regents of the University of California. The legislation amended Cal. Gov. Code Sec. 8547.10 to conform to Sec. 8547.12, which governs California State University.

POGO has been very involved in this case because UC is a top 100 federal contractor, but yet its employees didn’t have legitimate whistleblower rights. The effort was taken up by California Sate Senator Leland Yee who has been proposing legislation since the California Supreme Court decision was issued in 2008. According to Senator Yee:

SB 650 provides UC employees with the same legal protections as other state employees, including those at California State University and California’s community colleges. The new law will ensure that UC employees can exercise their right to seek damages in court on a retaliation complaint that was not responded to fairly by the university.

This is great news, because in the past UC employees were left without any civil remedy so long as UC rendered a decision on a case in a timely fashion. In essence, UC was its own judge and jury, and there was no independent evaluation of the retaliatory actions against employees.

This action is a step down from a proposal last year to provide UC whistleblowers the same protects as other government employees, but this is a great example of how democracy works—even if it took many years and the involvement of all three branches of state government.

And with the recent decision in Runyon v. Board of Trustee of the California State University (2010) holding that a whistleblower could properly pursue a remedy in the Superior Court after an adverse administrative ruling, UC whistleblowers have improved protections and the bad precedent of Miklosy is nearly erased.

-- Scott Amey

Friday, July 16, 2010

Governor Signs Yee's Bill to Protect UC Whistleblowers

in the midst of a mess - there comes this happy news --a happy anniversary to celebrate in coming years-- the signing of this legislation by the Gov! Progress comes though slowly, but it comes-- thank you to all who helped to get us to this day!!!
“The long arc of the universe bends toward justice”
Governor Signs Yee's Bill to Protect UC Whistleblowers

UC administration denies access to public meeting and continues to oppose transparency reforms

SACRAMENTO – Governor Arnold Schwarzenegger (R-Los Angeles) has signed legislation authored by Senator Leland Yee (D-San Francisco) to protect University of California faculty and workers who report illegal or improper actions.

SB 650 provides UC employees with the same legal protections as other state employees, including those at California State University and California’s community colleges. The new law will ensure that UC employees can exercise their right to seek damages in court on a retaliation complaint that was not responded to fairly by the university.

In July 2008, the California Supreme Court ruled (Miklosy v. the Regents of the University of California) that UC employees who are retaliated against because they report wrongdoing cannot sue for damages under the state’s Whistleblower Protection Act, so long as the University itself reviews the complaints in a timely fashion, regardless of their findings. The ruling uncovered an oversight made by the Legislature when the Act was amended in 2001, which provided legal standing for all other state employees to seek damages.

“This is the classic case of the fox guarding the hen house,” said Yee. “UC executives should not be judge and jury on whether or not they are liable for monetary claims. Finally, we are able to close this legal loophole and restore some dignity for UC whistleblowers and integrity to the system.”

“UC workers deserve to have the same protections as all state workers when reporting waste, fraud, or abuses on the job,” said Lakesha Harrison, a UCLA nurse and President of AFSCME 3299, which represents thousands of UC workers. “SB 650 now gives workers the confidence to report wrongdoing without fear of retaliation.”

“SB 650 will resolve the ambiguity in statute referenced by the Supreme Court and will ensure that all UC employees are given the same real – and not illusory – whistleblower protections as other state employees,” said Terry Francke, General Counsel for Californians Aware. “Fraud, waste and corruption in government cannot succeed if public employees are well-protected against punishment for blowing the whistle on wrongdoing.”

“SB 650 will protect UC employees who continue to face reprisal for reporting bad behavior and will allow those individuals to provide journalists, the Legislature and the public with essential information about the operations of these high profile institutions in an era where available financial resources are increasingly scarce,” said Jim Ewert, Legal Counsel for the California Newspaper Publishers Association.

SB 650 was supported by UC workers (Council of UC Faculty Associations, California Nurses Association, SEIU, and AFSCME), Californians Aware, City and County of San Francisco, and the California Newspaper Publishers, among others.

The only opposition was from UC administrators, who have opposed every legislative reform to bring greater transparency to the public institution.

Yesterday, UC officials also fought against transparency at the Board of Regents meeting when they refused to allow an independent filmmaker access to the public meeting – a blatant violation of the state’s open meetings law know as the Bagley-Keene Act.

UC’s spokesperson told the San Francisco Chronicle that she had never heard of the landmark open government statute.

“It is hard to believe that UC executives could reach new heights in denying public access and transparency,” said Yee. “Once again, UC administrators are more concerned with protecting their ivory tower and their culture of secrecy than the public trust.”

SB 650 officially becomes law on January 1, 2011.
--if you need some inspiration see THIS

Thursday, July 15, 2010

UC Regents Break Open Meetings Law

Member of the public denied access to meeting in “clear violation” of state law

SAN FRANCISCO – A member of the public was denied access to the University of California Board Regents meeting today in San Francisco in violation of state law.

An independent filmmaker documenting low-wage UC workers who face poverty was denied access to the public meeting with his video camera and was told by university officials that only “credentialed media” are allowed such access. However, state law specifically allows all members of public to record proceedings of a public meeting.

Government Code 11124.1 states, “Any person attending an open and public meeting of the state body shall have the right to record the proceedings with an audio or video recorder or a still or motion picture camera in the absence of a reasonable finding by the state body that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings. No state body shall prohibit or otherwise restrict the broadcast of its open and public meetings in the absence of a reasonable finding that the broadcast cannot be accomplished without noise, illumination, or obstruction of view that would constitute a persistent disruption of the proceedings.”

“It is hard to believe that UC executives could reach new heights in denying public access and transparency,” said Senator Leland Yee (D-San Francisco), who has authored several laws to ensure greater transparency at UC. “Once again, UC administrators are more concerned with protecting their ivory tower and their culture of secrecy than the public trust.”

“This is a clear violation of the statute,” said Jim Ewert, Legal Counsel for the California Newspaper Publishers Association.

“A filmmaker interested in low-wage workers' issues – for instance UC's threats to workers' retirement security – should not be illegally shut out of a public Regents meeting,” said Lakesha Harrison, President of AFSCME 3299, which represents thousands of UC workers. “Their actions today are the latest in UC executives' shutting the public out, which they will do even if it means breaking the law.”

UC is also fighting legislation that would protect UC faculty and workers who report waste, fraud, and abuse. SB 650, authored by Senator Yee, provides UC employees with the same legal protections as other state employees, including those at California State University and California’s community colleges. The bill currently sits on the Governor’s desk. He must sign or veto the bill by Sunday.

Specifically, the new law will ensure that UC employees can exercise their right to seek damages in court if the university has either reached or failed to reach a decision regarding a retaliation complaint within the time limit established by the Regents or if the university has not satisfactorily addressed the complaint within 18 months.

“This is the classic case of the fox guarding the hen house,” said Yee. “UC executives should not be judge and jury on whether or not they are liable for monetary claims. Finally, we are able to close this legal loophole and restore some dignity for UC whistleblowers and integrity to the system.”

which leads me to ask once again -- why doesn't the UC use UCTV to broadcast the Regents Meetings? Aren't they in support of having everything on line?!


random thoughts on the happenings at the "regents" meeting:

UC Davis athletes - broke my heart during public comments...

Surprised that Alternative Commission to Present Survey Findings At Regents Meeting on July 15th was not a presentation but merely the pooling of time during public comment -- makes it even clearer that the whole UCOF project is just theater and that there is no interest in gathering a wide cross section of the UC community.

why did Chris Edley put "Thank You(Si, Se Puede)" on the final #14 slide of his pro online instruction presentation? it seems so ill timed and sadly ironic given this story: Berkeley Sees Admission of Latino Students Drop and Nonresidents Jump

and re: Edley's first slide: what does "A World Leading Public University" mean? Normally, the PR folks use the "World Class Research University" or some such that sounds better and less world domination-y.

We are the University of California-

a land grant institution

within the State of California.

How is California served by this initiative?

what is the purpose of having this :
if we can't watch the UC Regents meetings on it?

and at the end of the meeting the main question in mind:

am I watching a form of university raiding? remember the term corporate raiders from the eighties-- could the new term be "university raiders"?
Paging Regent Gordon Gekko...

Tuesday, July 13, 2010

SF Chronicle Meet LA Times re:Blum and a conflict of interest

Dear SF Chronicle
UC online degree proposal rattles academics

Please meet LA Times :

Is UC regent's vision for higher education clouded by his investments?,0,966735.story

CLOUDed, for sure...

Update: Cal officials revealed that the central administration in 2007 forgave $31 million in previous loans to the athletics department to cover annual deficits.

Review Criticizes Berkeley Athletic Spending

A joint faculty-alumni committee charged with investigating complaints about athletic budgets (and deficits) at the University of California at Berkeley has confirmed many of them. An "explosion of controllable and semi-controllable costs" in athletics, the committee's report says, "makes it clear that intercollegiate athletics has been playing by a very different set of budgetary rules from the rest of the campus." The report contrasts staffing cuts that have had severe impact on academics with the growth in staffing and program spending in athletics. "The culture of what has appeared to be unconstrained spending must change," the report says. The report also notes many contributions from athletics -- and from a big-time athletics program -- for Berkeley, but calls for the elimination of current budget patterns.

and this:
Chancellor Welcomes Report on Cal Athletics
12 July 2009

BERKELEY —The Chancellor's Advisory Council on Intercollegiate Athletics Financial Sustainability has issued its report containing key findings and recommendations regarding Cal Athletics. Convened by Chancellor Robert J. Birgeneau at the end of March, eight leading members of the UC Berkeley faculty and alumni communities were asked to

* Develop an understanding of the recent and current financial and competitive state of the Intercollegiate Athletics (IA) program.
* Assess alternative approaches to promptly putting the IA program on a financially sustainable course.
* Assess possible impacts of changes in the scope of the department on philanthropy to academic programs.
* Develop a short list of promising alternatives, including the pros and cons of each.

The council's report, along with the recently completed Interim Report from the Academic Senate's Task Force on Intercollegiate Athletics, is expected to guide and inform pending decisions about the Cal Athletics program and financial model. As noted in the following statement from the chancellor, those decisions are expected to be made and announced by the beginning of fall semester.

Chancellor Robert Birgeneau's response to completion of the report on Intercollegiate Athletics:

I want to express my gratitude and appreciation to members of the Advisory Council on Intercollegiate Athletics Financial Sustainability for their hard work and thoughtful analysis. They have produced a compelling report with a number of helpful recommendations. This focused collaboration between faculty and alumni generated fresh thinking on this complex issue that benefited from the combined wisdom of individuals who, despite their different perspectives, share a deep commitment to our university and its comprehensive excellence. This report and the Interim Report recently completed by the Academic Senate's Task Force on Intercollegiate Athletics are quite consonant. They will provide important guidance as we begin to sort through a number of possible approaches to put Intercollegiate Athletics back on a financially sustainable path. I agree completely with the Council's finding that the Cal Athletics program is "sustainable if and only if it accords with Berkeley's fundamental commitment to comprehensive excellence." At the same time I also share the Senate Task Force's belief that IA's "expenditures and resources must be matched, and budgets must be met."

In the coming weeks I will be working closely with Vice Chancellor Frank Yeary and Athletic Director Sandy Barbour on the detailed elements of a plan for IA's future, with the expectation that decisions will be made and announced by the beginning of the fall semester. Although the issues are complex and controversial, there is an emerging consensus around key issues. After comparing the reports issued by the Council and Academic Senate Task Force, it is apparent there is now broad agreement that:

* The campus benefits greatly from our robust IA program which improves community spirit, helps maintain alumni relations, enhances philanthropy for the university as a whole and provides national institutional marketing.
* The campus can and should continue to allocate funds to Intercollegiate Athletics. Both reports suggest that an annual allocation of $5 million would be both appropriate and beneficial despite disagreements regarding how long it could take to reach that level and how long those allocations should continue.
* IA's annual deficits must end through a combination of cost cutting, revenue enhancements and increased philanthropic support.
* A robust IA program supports and sustains philanthropic contributions to the university’s academic endeavors.
* IA is taking needed steps to improve its financial management and should be encouraged to continue on this path.
* IA is already taking needed steps to reduce its costs, including recent decisions that will trim $2.4 million from its annual operating budget.
* IA has taken the steps necessary to ensure the academic excellence and integrity of our student-athletes.
* UC Berkeley should consider taking a leadership role in the NCAA and Pac-10 regarding the national "arms race" that is driving IA expenditures across the country.

We must now translate our shared values and understandings into decisions, policies and practices that will make our goals a reality. Beyond the serious financial challenges that must be addressed, we cannot lose sight of the human element: the student-athletes, coaches, faculty, staff and alumni that form the foundation of the Cal Athletics community. They are the reason that we have an IA program whose academic and athletics achievements are consistent with our commitment to comprehensive excellence. They are the reason that the members of the Council all agreed that "a robust IA program is compatible with the values of an elite American research university, that it adds a valuable dimension to students' academic and social experiences, and that its part of Berkeley's specific traditions and histories is worth preserving." I am confident that, thanks to the two reports, we now have a clearer path to achieving financial sustainability for Intercollegiate Athletics and preserving its great tradition as an integral part of Berkeley's fabric.

Yours sincerely,

Robert J. Birgeneau

the full report is here:

and other background materials are here:

Saturday, July 3, 2010

Not Just About Tobacco Stock: UCSF head has millions in medical, drug stocks

Days after selling her tobacco stock and donating the proceeds to an anti-smoking program at UCSF, Dr. Susan Desmond-Hellmann, chancellor of the public medical school and hospital system, is facing new questions about her investments. This time it's about companies that sell prescription drugs and medical supplies.

"The potential conflict is that the official in charge of the institution could push plans and research that directly benefit her financially," said Doug Heller, executive director of Consumer Watchdog, a consumer rights group based in Santa Monica.

Heller emphasized that there is no evidence of impropriety. And Desmond-Hellmann said she will recuse herself from decisions that might benefit her.

"But the perception lingers" when the head of a medical institution has a vested interest in certain drugs or research, Heller said.

The question is more than academic because UCSF and other universities are increasingly forging research partnerships with private companies. For example, last month, the Merck pharmaceutical company announced it would sponsor cancer drug trials around the world, including at UCSF. Desmond-Hellmann owns more than $1 million of stock in that drug company.
Stocks worth millions

It's one of 10 medical or pharmaceutical companies in which the chancellor owns stocks collectively worth at least $6.1 million to $7.3 million, but potentially much more, according to the statement of economic interests she signed in August after joining UCSF.

"I am in full compliance with the rules and regulations that apply to employees of the state of California and the University of California," Desmond-Hellmann said in a written statement to The Chronicle. "As such, I disclose my economic interests as required and will disqualify myself from participating in decisions that may affect my personal economic interests."

Ethics experts say that is all the law requires.

"A conflict of interest doesn't occur until an official influences, participates in, or makes an official decision that impacts their economic interests," said Roman Porter, executive director of the state's Fair Political Practices Commission.

Bob Stern, who helped write the state's conflict-of-interest laws in 1974 as general counsel for the FPPC, said that because Desmond-Hellmann owns so much stock, "she should be consulting with an attorney on conflict laws."

"There's a potential for conflict," said Stern, now president of the nonprofit Center for Governmental Studies in Los Angeles.

To avoid such problems, politicians from President Obama to California Insurance Commissioner Steve Poizner have put their holdings in blind trusts.

That means handing all holdings to a manager who sells everything and starts a fresh portfolio without telling the client what's in it. California law allows public officials to stop recusing themselves from key decisions only after this process is done, said Heller of Consumer Watchdog. He said Desmond-Hellmann should consider a blind trust.

"The honor of being the chancellor of UCSF comes with the small burden of rearranging your finances to avoid conflict - for the sake of the institution and the public trust," he said.

State Sen. Leland Yee, D-San Francisco, said that even the appearance of conflict is a problem.

"The fact that she has holdings in these medical companies, you need to look at whether her support of that type of research at UCSF has been objective," said Yee, a frequent critic of UC.
Issues over tobacco

Desmond-Hellmann, a medical doctor, ran into trouble over her holdings last week when a New York Times reporter asked about her holdings in the Altria Group, parent company of tobacco giant Philip Morris.

When the chancellor joined UCSF in August, she owned between $100,000 and $1 million in Altria stock, described on the disclosure form as "tobacco."

The current form, signed March 30, described Altria as a "consumer staples" company, and the value of her Altria stock was listed as between $10,000 and $100,000.

In her statement to The Chronicle, Desmond-Hellmann said that as of Monday, she and her husband had "sold all holdings in companies whose primary business includes the sale/manufacture of alcohol, tobacco and firearms. We also have restricted the purchase of any future stocks in this category and will monitor our portfolio to ensure that it reflects our values."

Desmond-Hellmann donated $130,000 in proceeds from the tobacco stock to UCSF's Center for Tobacco Control Research & Education.
Created cancer drugs

Desmond-Hellman, 53, is perhaps the last person anyone would expect to back tobacco, which causes cancer and heart disease.

She arrived at UCSF from the biotechnology giant Genentech where, as president of product development, she helped develop such anti-cancer drugs as Herceptin, Avastin, Taxol, Rituxan and Tarceva.

At the same time, Desmond-Hellmann also had owned up to $1 million in McDonald's and up to $100,000 in Coca-Cola. Fast food and sugary drinks have been linked to obesity, which in turn is linked to higher risk of heart disease, diabetes, high blood pressure and cancer, says the National Institutes of Health.

These companies are gone from the current disclosure form, but she now lists more than $1 million in the soft drink company PepsiCo.
Chancellor's medical, drug stock holdings

Of the 132 companies in which UCSF Chancellor Susan Desmond-Hellmann owns stock, 10 are medical and pharmaceutical companies. The holdings are listed on Desmond-Hellmann's statement of economic interests, Form 700.

Shares worth at least $1 million:

-- Alcon Inc.

-- Baxter International

-- Covidien Plc.

-- Merck and Co.

-- Pfizer Inc.

-- Tiva Pharmaceuticals

Shares worth $100,001 to $1 million:

-- Bristol-Myers Squibb

Shares worth $10,001 to $100,000:

-- Celgene Corp.

-- Medco Health Solutions Inc.

-- Vertex Pharmaceuticals

E-mail Nanette Asimov at

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