More UA trickery: Conflation of two potential criminal acts | Arkansas Blog

Friday, December 20, 2013

More UA trickery: Conflation of two potential criminal acts

Posted By on Fri, Dec 20, 2013 at 9:37 AM

click to enlarge SEND A MESSAGE: Chancellor David Gearhart could take a new direction in dealing with questions about the budget mess. But it may be too late to do so. - THE CITY WIRE
  • The City Wire
  • SEND A MESSAGE: Chancellor David Gearhart could take a new direction in dealing with questions about the budget mess. But it may be too late to do so.
I was going to pass this for the  time being. Gearhartgate, the ongoing scandal over the deficit-ridden Advancement Division at the University of Arkansas and efforts by Chancellor David Gearhart to cover it up, becomes repetitive, complicated and even tedious to retell.

But on further reflection:

The Arkansas Democrat-Gazette — reporting today on prosecutorial reviews of potential perjury by Gearhart and financial chief Don Pederson in statements to the legislature — revealed a developing UA tactic to diffuse the issue. It's disingenuous. Or, if you prefer, dishonest.

Let me, as I did yesterday, try to boil it down.

Gearhart, who swore under oath that he never ordered the destruction of documents, now faces at least three eyewitnesses who quote Gearhart as saying at a Jan. 14 staff meeting to get rid of budget documents. Others, one an eyewitness and another reporting contemporaneous statements by multiple eyewitnesses, buttress the accounts at variance with Gearhart's, at a minimum as to his protests that he's always favored accountability. They include people, unlike fired PR spokesman John Diamond, in good standing at the university. (Or at least they are employed there. For now.)

How is the UA PR machinery dealing with the accumulating weight of testimony against Gearhart's truthfulness? And what about the now conclusive evidence that budget documents WERE destroyed, contrary to earlier statements by university officials?

From Lisa Hammersly's story in the Arkansas Democrat-Gazette today:

“The chancellor’s recollection of the [Jan. 14] meeting was that he disagreed with Mr.Diamond’s viewpoint and was frustrated with Mr. Diamond for continuing to argue about the issue,” [Mark] Rushing wrote. “The chancellor never directed anyone to destroy records subject to any [Freedom of Information Act] request.”

Misleading. Here's why:

The statement, intentionally I tend to think, conflates two distinct issues. The statement says of that ill-fated Jan. 14 meeting that Gearhart never asked anyone to destroy records subject to an FOI request. (My emphasis.) Such a qualification can't be found in Gearhart's sworn testimony before Legislative Audit. He said then:

“I have never said to anybody that they should destroy documents. "

Two crimes are possible: Destruction of documents under an FOI request and lying to the legislature. A person could be innocent of the first and still be guilty of the second.

As a backup, the university seems to be developing a defense that an angry Gearhart did indeed attempt to put the quietus on a discussion of budget matters at that staff meeting (a fact he'd been reluctant to acknowledge previously). But, the UA flack seems to suggest, Gearhart was merely attempting to shut down discussion, not ordering document destruction. That's a tortured reading of three witnesses' statements that he said "get rid of" documents. And consider the source: A witness, Gearhart, who created a fake appointments schedule and who was described by an attorney as being out of control in reacting to persistent FOI requests from the Democrat-Gazette.

Noted: The hometown prosecutor has now volunteered after earlier silence — without explanation in the file or otherwise — that he considered but didn't find evidence of perjury by Gearhart and would have referred such evidence to the Pulaski prosecutor had such been found. There certainly seems to be abundant circumstantial evidence. If Prosecutor David Bercaw had a reason to dismiss all that evidence against Gearhart's truthfulness he should explain why. Until then, it only encourages a suspicion that Gearhart and THE University got the home cooking they normally enjoy from Fayetteville officialdom.

Finally. You can be innocent of a crime and guilty of dishonesty. Indictment or no indictment, such a verdict on UA actions in Gearhartgate — past and present — continue to appear justified.

It is not too late for Gearhart to take a different approach. My PR counsel? Try this:

There were budget problems. If the fault of Brad Choate, they happened on Gearhart's watch and Choate was his friend. He was embarrassed to reveal the problems. He had strategic differences with John Diamond and perhaps simply a personality clash with an outlander. He made mistakes. But no crimes were committed. He's sorry. Terribly sorry. He's embarrassed. He knows the episode has tarnished a record otherwise full of solid achievements at a growing university with many fine departments and thousands of fine students.  Going forward, you can count on a no-excuses/no tricky explanations open-door policy. Got a question? Ask Gearhart, not his flack. Want a document? Come and get it. Want to see foundation records? The university is going to find a way to get that done.

Forty years in Arkansas tell me this is wishful thinking

What's more, Gearhart's lawyers likely would counsel him that such openness might be ill-advised in the current circumstances (pending perjury reviews).

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