A Public School with Something to Hide

U of L pays 3 administrators double retirement to keep them from divulging secrets

Officials' retirement deals required non-disclosure

“We had to give them something.”

---Mark Hebert, U of L spokesman.

This from the Courier Journal:

The University of Louisville last year paid three officials close to President James Ramsey twice as much to take early retirement as other administrators, so they would keep quiet about sensitive information the university did not want them to disclose.

James Ramse

Records show that the school paid a full year’s salary to outgoing Vice Presidents Michael Curtin ($252,350) and Larry Owsley ($248,255) and to assistant to the president Vivian Hibbs ($66,391) in part to induce them not to “disparage, demean or impugn the university or its senior leadership.”

“We had to give them something,” said Mark Hebert, U of L spokesman.

But several of the 175 other university staff and administrators who only got a half-year’s pay for taking early retirement said the extra — and previously secret — payments were unfair.

“I think it is a disgrace and an insult,” said James Harper, a lieutenant on the U of L police force who retired after 37 years and received $28,714, half his final salary.

Experts on university practices, including Marcia McCormick, an employment law professor at St. Louis University, also say it is inappropriate for a public university to pay to buy the silence of officials who are in the best position to inform the public about how a university is being run and spending public money.

Jason Kurland, a leader of the Washington-based American Association of University Professors and a former administrator and professor at the University of California, said he was disappointed with both the university and the three administrators — and that he’d never heard of “anything quite like this.”

“They are selling their souls for some extra money,” he said. “This is not the way to do business.”

Hebert noted that the three ex-administrators could still criticize the university, if they were willing to give up their extra six months’ pay. Asked if any of the three would have disparaged the university, if not for the clauses, he said he didn’t think any left unhappy but “you’ll have to ask them that.”

Curtin, the former vice president for finance, who worked for U of L for 38 years, and Owsley, vice president for business affairs, who started at the university in 1983, did not respond to messages.

Hibbs, who also worked for former President John Shumaker, declined to comment before hanging up the phone on a reporter.

Hebert said that the agreements — which also bar the university from disparaging Curtin, Owsley and Hibbs — represent a “mutual affirmation of good will.” He said non-disparagement clauses are “fairly commonplace” in higher education and “certainly common” in the business world.

He said the agreements were sought from these three administrators because they had access to confidential information about personnel matters and contract and budget negotiations. Curtin and Owsley were the only two vice presidents who took early retirement.

Hebert said U of L has “occasionally used confidentiality and non-disparagement language in agreements with employees who leave the university.”

At the University of Kentucky, non-disparagement clauses have been included in “legal separation agreements on occasion,” but it is not university policy to include such language as part of an employee’s retirement, said university spokesman Jay Blanton.

McCormick said she opposes such deals “if for no other reason than it gives the public reason to suspect that there is something worth hiding.”

She also said the agreements may violate the U of L’s statement on academic freedom, which says in part that “academic institutions in a democratic society exist for the pursuit of truth” and that “free inquiry and free expression are indispensable to the attainment of these goals.”

President, provost approved agreements

Curtin, Owsley and Hibbs were among 285 employees who retired early in a program the university says will save about $7.5 million over the next four years.

Faculty members received a full year’s compensation, while other staff and administrators collected a half-year’s pay.

Ramsey, who didn’t respond to a request for comment made through Hebert, personally approved the extra pay for Hibbs, while Provost Shirley Willihnganz approved the agreements for Curtin and Owsley, according to documents obtained under the Kentucky Open Records Acts.

The agreements, which The Courier-Journal obtained under the open-records law, bar them from making any statements, “without limitation ... impugning the personal or professional character of any director, officer, employee or consultant for the university.”

They also agreed not to disclose anything about the university that is not already known to the public or subject to Kentucky open-records laws, and to testify only if required by subpoena, which they must share in advance with the university.

They also agreed to do occasional consulting work, if required, at their final rate of pay.

The cases against, for non-disclosure

Employment law experts say that non-disparagement clauses are constitutional because the employees voluntarily surrender their First Amendment rights. But authorities say it’s possible that a court would not enforce them if a public employee made criticisms that are found to be true.

Outside academia, non-disclosure and disparagement clauses are included in about a quarter of executive employment agreements, though they have recently come in for criticism.

Author Chuck Klosterman, who writes a column called “The Ethicist” for The New York Times Magazine, said last year that such provisions that stretch beyond a straightforward embargo on business-oriented trade secrets “represent the worst kind of corporate limitations on individual freedom.”

Writer Will Blythe, explaining why he turned down additional money he would have gotten if he had promised not to disparage a digital publishing company that fired him, wrote in January in The Times that such contracts have a “paralyzing effect on the dissemination of the truth, with all of truth’s caustically cleansing powers.”

Common Cause and some unions have condemned their use in the public sector, saying they could discourage legitimate criticism of government or hide wrongdoing by public officials.

After a Boston Globe investigation in 2011 found that they had been used by 16 state agencies in Massachusetts, John Gatti Jr., a former state employee union official and a chief architect of the Massachusetts public employee whistle-blower law, said: “If there is any inappropriate behavior, it could stifle reporting of it. I cannot believe cash for silence in public employment practices is being allowed to continue.”

At the University of Wisconsin, after professors complained that the non-disparagement clause in its athletic department’s shoe contract with Reebok could bar anyone on campus from criticizing the sneaker-maker’s workplace practices abroad, the school’s chancellor in 1996 got Reebok to rescind it, saying, “I am deeply troubled by the suggestion that the university has abandoned its historic commitment to freedom of expression.”