As Part of our new CIG (Corruption in Georgia) Project I will be looking into the powerful Georgia Board of Regents which controls a budget of over $7Billion a year. I want to examine the Appeals process and use one case in particular as an example of the futility of the appeals process as well as the inept cronyism of the Board of Regents as an institution that serves no real purpose beyond considering the legal meritocracy of appeals as they relate to litigation.
Table of Contents
The Appeals Process for Fired Employees or Expelled Students
Technically speaking when an employee of the university system of Georgia is fired or a student is expelled, there is an appeals process. Under the Bylaws of the Board of Regents Chapter VIII deals with appeals.
APPEALS Any student or employee in the University System aggrieved by a final decision of the president of an institution may apply to the Board of Regents for a review of the decision. The Board’s review shall be limited to the record from the institutional appeal process. Nothing in this policy shall be construed to extend to any employee or student substantive or procedural rights not required by federal or state law. This policy shall not be construed to extend to employees or students any expectation of employment, admission, or additional due process rights.Each application for review shall be submitted in writing to the Board’s Office of Legal Affairs within a period of twenty days following the decision of the president. It shall state the decision complained of and the redress desired. A hearing before the Board (or a Committee of or appointed by the Board) is not a matter of right but is within the sound discretion of the Board.Appeals brought by students shall be governed by Policy 4.7.1 of The Policy Manual of the Board of Regents. Appeals brought by employees shall be governed by Policy 8.2.21 of The Policy Manual of The Board of Regents.The Board may at its discretion refer a matter for mediation, arbitration, or evaluation of settlement options. If an application for review is granted, the Board, a Committee of the Board, a Committee appointed by the Board, or a hearing officer appointed by the Board shall investigate the matter thoroughly and report its findings and recommendations to the Board. The decision of the Board shall be final and binding for all purposes
4.7.1 Student Appeals
Final judgment on all appeals regarding admissions (including program admissions), residency, student grades, traffic citations, and the Guaranteed Tuition Plan rests with the president of the institution at which the appeal is heard; (BoR Minutes, June 2006) provided however, appeals may be heard if the Chair of the Board’s Committee on Organization and Law, in consultation with the Board’s chief legal officer, determines that the matter should be presented to the Board. In considering whether appeals for review of the types listed above shall be presented to the Board, the Chair shall consider (1) whether the record suggests that a miscarriage of justice might reasonably occur if the appeal is not reviewed by the Board, (2) whether the record suggests that the institutional decision, if not reviewed by the Board, might reasonably have detrimental and system-wide significance, or (3) any other facts which, in the judgment of the Chair, merit consideration by the Board of Regents. (BoR Minutes, April 2010)
4.7.2 Appeals on Other Matters
Appeals by students shall be made according to Article VIII of the Bylaws of the Board of Regents. (BoR Minutes, April 2010)
8.2.21 Employment Appeals
Except as provided below, applications from University System employees for Board of Regents’ review of presidential decisions shall be limited to instances in which an employee is terminated, demoted, or otherwise disciplined in a manner which results in a loss of pay; provided however, appeals may be heard if the Chair of the Board’s Committee on Organization and Law, in consultation with the Board’s chief legal officer, determines that the matter should be presented to the Board. In considering whether applications other than the types listed above shall be presented to the Board, the Chair shall consider (1) whether the record suggests that a miscarriage of justice might reasonably occur if the application is not reviewed by the Board, (2) whether the record suggests that the institutional decision, if not reviewed by the Board, might reasonably have detrimental and system-wide significance, or (3) any other facts which, in the judgment of the Chair, merit consideration by the Board of Regents. (BoR Minutes, April 2010)
97% Rejection Rate of Appeals
In ten years of appeals the Board denied 97% of appeal submissions. ACLU Lawyer Nancy Abudu says the appeals process is nothing more than a formality. She continued that the Board of Regents benefited from the legal protections that are afforded by the state. It boils down to who can sue the state and what relief a litigant can expect. Sam Olens as the Attorney General does not appear to make it easy for anyone considering suing either regardless of the merit of their case.
Bill Simon went so far as to say “And, thus, in the AG’s office, when you have AG Olens himself, along with multiple other lawyers in that State Office signing the responses to Denise Caldon’s motions to lift protective orders, claiming this bullshit about “HIPPA-protected medical records,” the citizens of Georgia have State Attorneys deliberately committing multiple acts of felonies to cover-up a conspiracy to cover-up theft by University System of Georgia personnel.
[Gee…I dunno…is that racketeering or not? And, whether or not it is, violations of OCGA 16-10-8 should be applicable when it comes to “An officer or employee of the state” knowingly issuing a false statement or certificate.]”
The reality of the appeals process is they are not based on the merit of the appeal itself nor are they based on any facts or even logic. The only criteria that appears to be relevant to an appeal is the merit or lack thereof of a potential lawsuit. One board regent Doreen Stiles Poitevint admitted in a video interview as saying “I can’t think of a single incident where that has been the case” when she was asked if appeals are actually read or considered.
Vice Chancellor Burns Newsome reviews appeals and recommends how the board should vote. But instead of the appeals being based on the actual merit and facts of the appeal, the criteria that is used is based simply on whether there is merit in a potential lawsuit. If you have a good chance to sue and win, you will likely be among the lucky 3%. But if your appeal is not a case where you could successfully file a lawsuit with a good chance of winning your appeal is likely to be ignored and you will receive an impersonal form letter along with the other 97% of rejected appeals.
In one case a whistleblower with 16 years in the Medical College of Georgia (now known as GRU) as an X-Ray tech reported as a whistleblower a possible conflict of interest on one of his bosses who just happened to be Chairman of the Board of Regents named Don Leebern Jr. It turns out his whistleblower activity appears justified. Leebern was disciplined and fined $37,750 by the State Ethics Commission and unbelievably still serves on the Board of Regents. Mr. Snell, the compliance officers boss, was reported to be infuriated about his directive being questioned by the compliance Officer- who was later fired. Snell threatened all those cc’d within the email and anyone who did not follow his proclamation.
It appears Don Leebern also has quite the temper. Back in 2006 a neighborhood dispute over barking dogs led to a street brawl Saturday between University System of Georgia Board of Regents member Donald Leebern Jr. and Mason Lewis Bentley, the son of former Athens mayor Upshaw Bentley. Although the fight sent Mason Bentley to St. Mary’s Hospital emergency room with a broken nose and a punctured and collapsed lung, no charges have been filed against Leebern or Bentley, said Oconee County Sheriff Scott Berry. You can read more on this barking dog dispute at the link above. But a man that chooses to settle an argument on the street with a neighbor with his fists certainly seems like a person capable of firing someone over a whistleblower report to me. Even if he was not directly responsible for the termination, it is conceivable that he used Snell as his lackey. He certainly is used to throwing his weight around in the university system as you can read below.
In an article by the Red & Black, the University of Georgia paper, they argued in 2012 that Leebern Jr. should not still be a University System regent. I encourage you all to read the entire article at the link. Here is only a small excerpt.
Georgia Governor Nathan Deal’s inexplicable and inexcusable reappointment of Donald (Don) Leebern Jr. to the Board of Regents this year (Executive Order issued on January 1, 2012) proves dirty politics are still alive in the University of Georgia System.
Leebern has served on the Board, which oversees the University System of 35 member universities and colleges, since 1991. If he serves his entire new seven-year term, he will remain a regent until Jan. 1, 2019. Leebern is known as one of the University’s most generous financial contributors. But he is, perhaps, more noted for his roles in various controversies while serving as a regent. Several have shown a shameful and reckless pattern of conduct.
Leebern has had an ongoing romantic relationship with former University head gymnastics coach, Suzanne Yoculan, despite the fact that he is legally married to another woman. That’s not exactly being good role models to the students Leebern serves as a regent and Yoculan coached at the University. Their relationship even led to National Collegiate Athletic Association/Southeastern Conference sanctions while Yoculan was still the Bulldogs coach, though she only drew a reprimand from the University by then-athletics director Damon Evans. Accompanied by Leebern, Yoculan took six team members on a trip to New York shortly after their NCAA eligibility expired on a jet owned by Leebern, a violation of an NCAA rule forbidding the provision of “extra benefits” to athletes who have run out of eligibility.
Leebern used his iron-fist influence as a regent to help get Michael Adams the University president’s job when Adams was the least qualified of those considered for the position. And Leebern has helped Adams retain his job when he should have long ago been fired for any of a long list of reasons. Leebern also played a part in the forced retirement of University football coaching legend Vince Dooley as the school’s athletics director after Dooley reportedly refused to promote Yoculan to a high athletics administration post.
Another conflict of interest involving Leebern that should not have happened is his son, Don Leebern III, being appointed to the University Athletics Association’s Board of Directors, and remaining such while his father has been a regent. The NCAA should enact stiffer legislation to limit the roles of boosters such as Leebern and what positions of power and influence they and their family members can hold.
Let me ask my question again, does Don Leebern Jr. seem like a candidate likely to be reported for a whistleblower suit and then retaliate against the person that reported him by having that person fired then blackballed from any other employment as retaliation?
The whistleblower who did his duty as required by law and followed his conscience however didn’t fare as well. Brandenburg was fired a few weeks after he filed his compliance complaint. Brandenburg was fired for allegedly telling a patient’s father that he had “the most stinkiest feet,” which Newsome called “a patently offensive comment.”
But the patient’s father wrote in a sworn affidavit that he wasn’t offended by any comment Brandenburg made and didn’t report it to hospital officials. He wrote that hospital officials tried to convince him to sign a complaint against Brandenburg to justify his termination – an effort he referred to with an expletive.
During his eight-year fight, Brandenburg said he sank into depression and lost his side business and his marriage. He said he doesn’t believe the board truly considered the impact their decisions have on the people unjustly fired.
Brandenburg provided an email he said he received through an open records request that shows the then hospital president, Don Snell, was not pleased with the ethics complaint against Leebern and was ready to discipline those involved in the fallout.
In a video interview Burns Newsome and another board attorney agree to a short video interview. In the interview they admitted their main priority was keeping the board and state from being sued and not actually reading or considering the appeals based on merit but they also consider the employees interest. Jeff Chirico, the interviewer, pressed them to answer whether sometimes these interest conflict and how they could possibly be considering the interest of the fired employees with a 97% rejection rate.
The board attorney answers “Why would they. No, they never do. The best interest of the Board of Regents is to not have to lose cases in court”
Newsome defends the 97% denial of appeals rate by saying terminations are being handled properly. He continues on by saying “there is no constitutional right to have a hearing before the Board of Regents. The board of regents appeal process is entirely discretionary”
Many of the people who feel they were unjustly fired said their lives had been destroyed. They were blacklisted from the profession they love and will likely not ever be able to find work in that field again. Many sank into deep depression, lost their homes and even their marriages due to the stress and financial ruin.
Who are the Board of Regents?
Out of 19 members it sure was nice to offer two positions to women and one position to an African-American. Does that look representative of the state of Georgia you live in? Georgia has roughly 51% females and around 31% black citizens, but you certainly wouldn’t know that from that photo where you would assume the whole state is made up of old rich white guys. Selection and the composition of the Board of Regents is worthy of an entire article so I will save more detailed and pertinent commentary for an article on this very subject in the near future. One tidbit I can offer you now is that it shouldn’t surprise you that other states have a far more balanced and reasonable approach when selecting board members. Some states even require no more than half the board can be from one political party, no more than two can be from one university, and they must represent all parts of the state.
It also appears Carter Pewtershmidt of Family Guy acclaim is a member as well. I think Carter actually personifies what many people feel is the personality of the board given the rate of the rejection of appeals as well as the mostly old rich white guy composition.
Why Appeals to the Georgia Board of Regents are Futile
If you listened to the words from the Vice-Chancellor’s own mouth, unless you have an appeals case that is likely to result in a successful lawsuit against the Board you are more than likely wasting your time. It won’t even be read by other regents. Given their immunity and the difficulty of even suing the USG at all, your chances of ever having a meritorious lawsuit are slim to none. Or to be more precise at around 3% which are the number of appeals actually approved. The other 97% of appeals will receive the standard form letter after it has been determined you cannot sue. This applies to students who may have been expelled without just cause and well as for employees who have been fired by a capricious boss. Your value to the USG at least in terms of your appeal seems to be limited to how meritorious a case you represent as a potential lawsuit.
I find this extremely disturbing. Why even bother to have the pretense of an appeals process in place at all that will allow people to have some hope. many think the Board is their advocate and they will receive justice or at least a fair chance to have their side heard. Appeals aren’t even being read. They are summarily dismissed if the student or employee can’t sue. Is this truly who we are as a nation? Is this who we are as a people? The sheer callousness on display in the interview with the two board attorney’s answers shows a level of complete disconnect to the people who are appealing as human beings. To my eyes at least they seem dispassionate and heartless and absolutely no emotion at all is shown.
From a Pavlovian, or classical conditioning standpoint, there is what Dave Grossman has termed the Reverse-Clockwork Orange process. In the movie, Clockwork Orange, a sociopath is injected with a drug that makes him nauseous and he then is exposed to violent movies. Eventually he comes to associate all violence with nausea and is somewhat “cured” of his sociopathy. We often say that children become desensitized to violence after spending thousands of hours watching violence on TV. The U.S. military quickly learned that switching from bulls eyes target to lifelike targets in shooting practice drills made for far more effective soldiers since they would never be attacked by a bullseye on the actual battlefield. Is this rigid and unfeeling legalized rejection of all appeals based on nothing more than lawsuit meritocracy their version of desensitizing the Board of regents to the fact that these are actual human beings whose lives are being destroyed? Instead they become a case number to be sent a form letter after decades of service.
I would strongly urge the Board of Regents to actually start reading these appeals and even better interviewing these people in person. Give these people a fair chance to plead and make their case. Maybe many were justifiably expelled or fired. But it is highly improbable that 97% of them were justified. Yes it is true in Georgia you can fire someone because you don’t like the color of their shoes but that does not make it right. You might also find the people behind those those expulsions or firings may in fact be the ones who need to be fired. Unless we have a system where whistleblowers have a guarantee they will not be fired for coming forward and doing the right thing we have no hope of restoring faith in the University System in Georgia as little more than an anachronistic friend’s of the Governor club.
Given the lack of protection for whistle blowers as evidenced by the people in these articles, what possible incentive would any potential whistle blower have to come forward and report financial irregularities or other misconduct against a boss that can fire them with the knowledge that 97% of people who appeal will be rejected? My advice to anyone even considering becoming a whistle blower is keep good documentation and make sure if you do decide to move forward the Board of Regents would view your case as a loss in court. Otherwise, if you like your job and life for the time being at least it appears the best course of action is to play deaf, dumb, and blind.