The chancellor at the University of Arkansas at Fayetteville shared documents from his chief fundraiser’s personnel file with a donor and campus adviser nearly three weeks before he disciplined the employee in connection with the multimillion-dollar budget deficit in the school’s Advancement Division, university documents show.
In an e-mail forwarded on the night of Oct. 20, UA Chancellor G. David Gearhart sent the Oct. 19 findings of a financial inquiry by the campus’s treasurer to Greg Lee of Fayetteville, prefaced with a simple, “FYI.” Also, he sent Lee an Oct. 20 written response to the findings from Brad Choate, vice chancellor for university advancement.
Lee, who retired in 2007 as an executive with Tyson Foods Inc., returned the documents to Gearhart with written notations, said the university’s chief spokesman, John Diamond, in an e-mail Wednesday. Gearhart wanted Lee’s opinion because of Lee’s role as an adviser on UA’s Campaign Steering Committee and because of Lee’s “working relationship” with Choate, Diamond wrote.
Lee’s notations include underlining and comments such as, “True?” and “interesting.”
In Choate’s response, the vice chancellor outlined his side of the story concerning the treasurer’s investigation into a $3.37 million deficit in the Advancement Division’s fiscal 2012 budget.
The internal campus audit by Treasurer Jean Schook found that Choate and his budget director didn’t monitor income and spending adequately, and didn’t follow university policy on handling transactions. That resulted in the Advancement Division overspending its roughly $10 million budget in the fiscal year that ended June 30, Fayetteville campus officials have said.
Since the deficit matter first became public in early December, Gearhart and his staff had declined to release the treasurer’s report and Choate’s response to it, saying both were employee evaluation and job-performance records exempt from the Arkansas Freedom of Information Act. They decided to release the treasurer’s report and other documents Feb. 15, in response to a lawsuit filed by the Arkansas Democrat-Gazette. The university continues to maintain that the records are employment documents but released them after securing signed releases from Choate and two other employees involved.
The e-mail to Lee, which Lee forwarded to his wife, Hannah, was part of the records UA released.
Choate didn’t respond to e-mailed questions about the documents being sent to Lee.
TYSON DONATION
When recently asked about the shared information, Lee initially said it had been months since he’d read the email, so the Democrat-Gazette sent him a copy.
Lee replied that he serves the university as a volunteer, donor, and member of its Campaign Steering Committee.
“Chancellor Gearhart reached out to me and sought my advice regarding the issues in the Advancement unit,” Lee wrote. “I fully support the actions taken by Chancellor Gearhart and the U of A Administration to address the problems in Advancement.
“I have nothing else to add to the abundant public information regarding these issues.”
Lee forwarded a copy of the documents to his wife so he could read them on a larger computer screen in his home, he said.
The treasurer’s report refers to a $1.3 million restricted donation from the Tyson family and a Tyson foundation that was deposited into an unrestricted account, an error corrected after it was discovered during the treasurer’s inquiry. Lee wrote a check mark next to that information.
John Tyson, who is chairman of the board of Tyson Foods Inc., resigned from the UA System’s board of trustees Feb. 5 and has not returned messages regarding whether the accounting error was among reasons for his resignation. The donation was intended for a child-development center named for Tyson’s late mother.
Lee worked for Tyson Foods for 27 years, and was chief administrative officer and international president when he retired in 2007.
Diamond emphasized that Lee’s “key role” lies with his work on the Campaign Steering Committee.
“He is a major stakeholder in the university’s capital campaign planning process,” Diamond said via e-mail. “The chancellor wanted Mr. Lee’s feedback on the Advancement situation prior to making decisions that could affect the campaign’s process and progress.”
Diamond did not answer other questions, such as whether a specific law or university policy allows the chancellor to share employment information with an outside adviser.
A professor who specializes in freedom of information law and public access, Robert Steinbuch, said the records can’t be both employment records and fundraising records.
“Why are they calling it the type of document that is a public document when they turn it over to Mr. Lee, but they call it an employee evaluation when the newspaper requests it?” asked Steinbuch, a professor at the University of Arkansas at Little Rock’s William H.Bowen School of Law.
“They are characterizing this document essentially as a public document when they turn it over to Lee,” he said. “They are talking about it as being a substantive fundraising document.”
The Freedom of Information Act, in Arkansas Code Annotated 25-19-105, contains a list of kinds of documents exempt from public disclosure. The list includes: “Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”
The statute goes on to set out a legal test for determining release of specific kinds of employee records.
“However, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure,” the Freedom of Information Act says.
ABOUT THE LAW
During a Nov. 2 executive session - nearly two weeks after Gearhart shared the documents with Lee - Gearhart outlined the deficit problem to the UA System’s board of trustees and revealed his plans to discipline Choate.
Some senior trustees have said the closed session was the first time they were told about the deficit, though Gearhart’s e-mail correspondence with Choate indicates that he briefed UA System President Don Bobbitt, who works for the board, sometime before Aug. 8.
On Nov. 6, Gearhart told Choate that his university appointment would not be renewed after June 30. He let Choate keep his title and his $348,175 salary, but stripped Choate of his administrativeduties. The chancellor said he needed Choate to concentrate on planning for a coming fundraising campaign.
Ben Shipley, a Fort Smith lawyer whose specialties include labor law and employment-discrimination law, saidit’s impossible to say whether a particular release of employee information is legal without knowing the facts of the case, so he could speak only generally.
“There is a whole body of law, in state law and federal law, that has to do with employment records and employment law,” he said, and these exist separately from the Arkansas Freedom of Information Act.
Prospective future employees and investigators conducting background checks are among those who might request access to an employee’s information, Shipley said. In the private sector, human-resources professionals must be careful in what they disclose, he said, following both the law and the employer’s policies. Often, an employer needs either a court order or a release signed by the employee before it will release the information.
Some of the employer concerns include possible defamation, slander, or libel lawsuits by the employee.
If an employer shares an employee’s information with someone who doesn’t have “privilege,” such as the employer’s attorney, the disclosure also could make the information discoverable in litigation, said Shipley, who’s with Cross Gunter Witherspoon and Galchus of Little Rock and Fort Smith, and is past president of the Western Arkansas Human Resources Association.
Sharing that information, “may waive that privilege of keeping it private,” he said.
A June 2002 opinion by the state attorney general’s office said the Freedom of Information Act is “silent on the question of who may review personnel records by virtue of an official position” but also said it wasn’t clear whether an elected city council could access employment records that were otherwise exempt from the Freedom of Information law.
Front Section, Pages 1 on 02/28/2013