Private email use illegal? 'Hard to say'

Private email use illegal? 'Hard to say'

URBANA — Using personal email to conduct public business is potentially risky and unlawful, and at the University of Illinois was done to thwart open record laws, some legal experts said in the aftermath of Chancellor Phyllis Wise's resignation and disclosures that she and fellow administrators used private accounts for UI business.

"It's certainly unlawful," said Adam Goldstein, attorney advocate for the Student Press Law Center in Washington. "It's not criminal in Illinois like it would be at the federal level, but it's unlawful and it's sanctionable."

Some things to consider, he said, are how many emails Wise sent, over how long a period the emails were exchanged and with whom — for example, how high-ranking her correspondents were.

The UI has released more than 1,100 personal emails, many from Wise, that have been subject to Freedom of Information Act requests about such sensitive issues as Steven Salaita, James Kilgore and the Carle Illinois College of Medicine.

If Wise sent, say, 25 emails, Goldstein said, the university and her correspondents could have easily overlooked the fact that they were sent from her personal account. If she sent, say, 2,000 emails, over years, "it's hard to argue that nobody noticed it was from a private account."

"Worst-case scenario, she was emailing her direct supervisor," he said.

If emails were about pending litigation, they might have been subject to discovery, which means the university could be subject to judicial sanctions, Goldstein said.

Matt Topic, an attorney with Loevy & Loevy of Chicago, said from the accounts he's read, there wasn't any reason for UI officials to use private email other than to hide public business from the public.

"There's really no valid reason to do that," said Topic, whose firm is representing Salaita in two lawsuits against the university. "The only reason to do that is to thwart public record laws."

And, Topic said, private email accounts don't have the same level of security that a system such as a university has, so there's greater potential for private information to be stolen.

Whether the use of private email on the part of UI administrators was actually illegal, though, Topic said, is "hard to say."

"It raises a number of questions about whether it complies with university policies and if records were withheld for prior FOIA responses," he said. "Then there would have been violations of FOIA."

Certainly, he said, the university should look at its prior FOIA responses to check.

Steven Macias, a professor at Southern Illinois University School of Law, said the issue is troubling enough for Congress to want to tighten the rules at the federal level.

The idea behind the Freedom of Information process is that the public should be able to inspect every step of what went into a decision.

"If some step was discussed over email, the public should have the right to inspect how that decision came about," he said.

It's not that everybody has to see it, Macias said, but "it's that it should be accessible, so that those who need to see that information should be able to get it."

Macias, who teaches the First Amendment and privacy law, also said he's not sure if the law adequately matches up these days with how people use their work and home email accounts.

"I think it's easy to slip back and forth between using a private and public email," he said.

The Illinois Attorney General's Office declined to give an opinion about UI administrators use of private email when contacted Monday.

"We would need to look into the situation in more detail," spokeswoman Annie Thompson said. "At this point, we have not received a request to do that."

Musical chancellors

Like men's basketball coaches (four since Lou Henson hung it up in 1996) and presidents (six in the 21st century), UI chancellor is not a long-term job. A history lesson:

1967-77

JACK PELTASON

3,641 days

1977

MORT WEIR (acting)

151 days

1978-79

BILL GERBERDING

545 days

1979-84

JOHN CRIBBET

1,877 days

1984-87

THOMAS EVERHART

1,094 days

1987-93

MORT WEIR

2,140 days

1993-2001

MICHAEL AIKEN

2,972 days

2001-04

NANCY CANTOR

1,044 days

2004-09

RICHARD HERMAN

1,943 days

2009-11

BOB EASTER (acting)

687 days

2011-15

PHYLLIS WISE

1,411 days

2015-

TBD (acting)

2 p.m. Wednesday

****

FOIA requests

Nosy journalists aren't the only ones who bombard the University of Illinois with open records requests. Among the 309 (and that's just through May 29) listed on the UI's publicly accessible FOIA log:

"A copy of bat count records associated with Cave Spring Cave in Hardin County, Illinois."

62 different requests tagged "animal research," which typically ask for "any and all intake records, transfer records, daily care logs, animal health records, treatment and progress report, veterinary reports, necropsy reports, photographs and videos related to" a certain dog or cat with a four-digit lab number.

"A copy of the accepted transfer students to the University of Illinois Urbana-Champaign campus. I'd like to request email addresses, phone numbers and permanent addresses, if possible."

"A groundwater flow model of the Marengo, Illinois region, to simulate the potential impacts of a proposed municipal well."

World of hurt

Phyllis Wise's sudden exit brought out a range of emotions in UI circles:

FRUSTRATION

"I'm not in a position to judge Phyllis Wise or the email situation one way or the other," says UI alum Gary Wackerlin (MS '73), executive director of The Christie Foundation. "What does bother me a lot are: 1) the money spent on expensive lawyers to investigate this and other things like we've seen recently, and 2) the golden parachutes and high-paying faculty positions made available to terminating executives. Decisions like this are why Illinois is in its present condition."

DISAPPOINTMENT

Her mom's a Phyllis fan but 18-year-old UI student Emily Alameda's opinion turned negative after she read Wise's emails, including "This place is so messed up" (in response to a poor-quality promotional video). "She was talking about some really important university things, saying bad things about the university and complaining about the university," Alameda says. "If there were so many bad things happening, I think it should have been the chancellor's job to fix them."

FED UP

One day, it's an athletic investigation. The next, the mass release of embarrassing emails. "What's important to me with our next chancellor is that the person builds and promotes the University of Illinois brand," says Bill Forsyth, who from 1984 to '86 served as Chief Illiniwek. "The University of Illinois is a globally recognized and respected institution, yet much of that is lost because the press devotes an inordinate amount of coverage to any negative event that takes place."

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Reykjavik wrote on August 11, 2015 at 8:08 am

Let's hope that the next chancellor is as good as Phyllis: an illustrious scholar, poised speaker, and honorable leader who helped create UIUC new hybrid engineering-medicine program.

Her most dastardly act was using private email account to discuss boring churn associated with fumbled attempts to not hire Salaita.  If those tedious emails are as bad as it gets, then UIUC is in great shape.  

 

Phil S wrote on August 11, 2015 at 8:08 am

No, it's not just a bunch of tedious emails.  It's the CONTENT of those emails.  Read them, for goodness sakes.  They expose corruption, collusion, possible bribery, the acceptance of illegal gifts.  It's all there.  Don't be lazy--read them for yourself.  I analyze just TWO of the COM emails below.

Phil S wrote on August 11, 2015 at 8:08 am

I wanted to follow up with a couple of items related to the UIUC/Carle College of Medicine emails that I touched upon on comments to a previous NG article.  I'm hoping that the News Gazette can follow up on these (and the many other) instances of possible illegal or unethical activities revealed in the COM emails.

First is this gem from page 17 of the COM emails where Phyllis Wise refers to BOT Chairman Chris Kennedy suggesting that UIUC "buy out" UIC administrators to get their cooperation on the formation of the UIUC COM.  What are they talking about?  Bribery?

'I met with Chris Kennedy today (March 18, 2014).

[..]

[Chris Kennedy] said that if we get a COM and compete for NIH $, that UIC will not get as much and that they will try to kill it.  He said we have to get Paula, Lon and Dimitri on our side.  He said "buy them out.""

Second is on page 243 of the COM emails, an email from Paul Umbach to Phyllis Wise dated July 28, 2014:

"Hi friend.  I was waiting to hear from you before sending him an invitation - so I agree that he should be invited to future private meetings.  Here are three key things that I want to discuss tomorrow morning:

1.  Need to have the university rules followed with faculty committees in an advisory capacity to the partnership with the Dean reporting to the two partners and having input and advisement from a faculty committee (with faculty coming from both parties - with Dr. like Jim being represented on the faculty committee).  I'll explain more.

2.  I want the class size to grow from 25 to 50 as FAST as possible - which will require the phase out of the scholars program with a concomitant increase in students from the new school.  SO, Carle will be training 50 students all along - with the numbers for the new school growing from 25, 35, 40, 50 as the number of UIC students decreases over the same years.  Major breakthrough with Carle today on this topic.

3.  We need to NEVER show a budget with red for every year.  Solution?  Have Carle and the University pledge ongoing operating money - Carle at $2.5 million and the University at $1 million.  Or whatever!  We just need to have money in the budget to make the numbers turn from red to black.

See you tomorrow.  Don't Worry!!!"

The results of the little exercise in book-cooking under point (3) appear on page 16 and in Appendix E of the "Business Plan to Establish a New College of Medicine in Urbana-Champaign" dated October 24, 2014, as prepared by [drum roll, please] Tripp Umbach, which can be accessed at http://strategicplan.illinois.edu/documents/Carle_Illinois_NewCOM_Busine...
 

Doesn't cooking the budget to reflect a profit reflect poorly on the ENTIRE report prepared by Tripp Umbach?  Clearly, Phyllis Wise and other UIUC administrators, as well as Carle administrators, were well aware of this MONTHS before this report was released, and evidently they didn't have any concerns about it.  And how about forcing the growth in class size from 25 to 50 outlined in point (2)?  This sounds like a "Project Runway" Tim Gunn "make it work" moment.  It may work on reality TV, but can they expect it to work in real life with real medical students?  It LOOKS like they may be forcing unrealistic expectations in order to get this project approved.

And of course, there are several instances of dog whistling the Steve Salaita case peppered throughout the COM emails.  The anonymous donors and Carle administrators express their relief that the Steve Salaita case has been "resolved."  And Phyllis Wise, who keeps misspelling Salaita's name as Saleita (perhaps so it doesn't come up in search engines), assures everyone that Salaita is water under the bridge.  What donors and/or Carle administrators were being appeased by unhiring a controversial university professor, and why?  And WHAT THE H*** does it have to do with gaining approval for the College of Medicine?

Will the News Gazette follow up with UIUC and Carle on these issues?  We wait with bated breath...

IlliniwekMerica wrote on August 11, 2015 at 11:08 am

I am not a party to this subject in any way, but there are some pretty reasonable explanations for some of your accusations. I could be proven wrong, but taking a reasonable, positive approach to it:

1) "buy them out" could reasonably mean just make their department whole for the NIH money that UIC going to miss out on. Not personal bribes to the people mentioned.

2) The class ratios don't seem too outlandish, they want 50 from the start but that will be a mix of UIUC and UIC students. UIUC is competing for talent and funding, of course they're going to want their ratio of those classes to grow.

3) Having worked extensively with public sector accounting records, I understand what they mean by never showing a budget in the red. It's not a nefarious situation where the COM will just be a money pit, but from a public relations perspective, you don't want year after year of negative numbers showing, especially those that are freely accessible by the public. I can imagine if you would look at the future COM financial statements, they might show operating costs that exceed regular income (grant, tuition, etc.) in some years, but those will be pasted over with operating money that they mention from U of I and Carle to not show a decrease in "net assets" at the end of the year.  Again, all that information will be publically available in the future, so we as citizens of Illinois can analyze it then.

As far as Carle expressing relief the Salaita case was resolved, that reasonably could mean from a public relations standpoint they're glad the problem could be behind them. Same as Carle will be relieved if the women's basketball issues are "resolved" or the football issues are "resolved"; it has no direct bearing on Carle, they are just glad its over with.

Any way, I don't expect everyone to read all of that, but there are pretty reasonable explanations for what could have happened. I would be glad if the News-Gazette looked into it further, I'm just approaching it from a logical perspective, not a "burn it down" perspective. 

 

Phil S wrote on August 11, 2015 at 12:08 pm

Thanks for your well-reasoned reply.  Your explanation for "buy them out" is certainly a possibility, but it needs further explanation from the parties involved.  It may not be bribery in the strictest sense of the word, but UIUC is clearly being asked to compensate UIC in SOME manner for their support for the UIUC COM.  Is that ethical?  It needs further investigation.

The shifting of students from UIC to UIUC is certainly interesting.  I'd like to know how that agreement came about.  Remember, these are public universities, and transparency is expected.  Even so, Umbach seems rather insistent that the enrollment in the new COM be increased as rapidly as possible in order to get the deal approved by all involved.  Is it realistic?  Can a realistic plan for a new COM be thrown together in less than a year?

"You don't want year after year of negative numbers showing, especially those that are freely accessible by the public."  Why?  The uneducated masses can't handle the truth?  And if there is a larger than expected deficit, are UIUC and Carle going to be throwing money down a rat hole to make the project appear viable?

"All that information will be publically available in the future, so we as citizens of Illinois can analyze it then."  I think that the people of Illinois could want to know these kinds of things BEFORE a commitment to a university/non-profit hospital project costing in the hundreds of millions of dollars.

So no, I would ask UIUC and Carle to slow down and take a more careful look at this project, and to be more forthcoming to the public about how they reach their conclusions.  If you read the Tripp Umbach report, you'd think it was nothing but wine and roses.  I hope the News Gazette investigates further.

PS -- The mentions of the Salaita case are more than "casual," but I'll leave that for another time...

andrewscheinman wrote on August 11, 2015 at 11:08 am

No, she hid the goings-on about the College of Medicine, she hid her calling Urbana mayor Prussing's objections "a distraction."  She hid a process that is required -- by LAW -- to be open.

She also took legal advice from Robin Kaler, who isn't a lawyer, sent confidential information to her son, who is a lawyer but isn't a UIUC employee and so has no business seeing confidential documents.

She set out very purposefully to do something illegal.  For you to argue what you did is ... silly.

IlliniwekMerica wrote on August 11, 2015 at 11:08 am

And for the record, I do believe what she did was illegal at worst and completely unethical at best. But i completely disagree with Prussing's brigade against Carle and trying to invovle the University in a botched local political budget issue.

Sid Saltfork wrote on August 11, 2015 at 1:08 pm

The U of I has a long history of scandals involving it's top administrators.  This will continue until some safe guards are put in place.

  1)  Stop having the U of I, or any state school of higher education, doing their own investigations.  Have the state General Inspector's Office, and the State Police conduct the investigations.  The "flagship" attempts to cover things up with their private, even "independent", investigations.

  2)  Stop giving "golden parachutes" to the wrong doers.  Fire them as same as lower level staff.  Stop the practice of one rule for the peons, and another for the "chosen".

  3) Prosecute the unethical, criminal, and corrupt wrongdoers.

I think that Wise, and the others are guilty of a crime.  State business, or state matters apply to the use of all computers regardless if they are "private" laptops, or other devices.  At least if they are not criminal, they are beyond arrogance and reasonable intelligence.  People need to realize that the culprits are highly educated in their specific fields, but their not intelligent in everything.  In this scandal, they were morons.

For Wise supporters; accept that these culprits were guilty of unethical behavior, and possibly criminal behavior.  Any educated fool should be able to see that.  

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