Did Phyllis Wise violate university’s “criminal” warning over Salaita emails?

Ali Abunimah Rights and Accountability 11 August 2015

Chancellor Phyllis Wise during the University of Illinois Homecoming Parade, 24 October 2014. (via Facebook)

University of Illinois employees were formally warned by lawyers last September that they could face civil and criminal penalties for failing to preserve records related to the Steven Salaita case, The Electronic Intifada can reveal.

Last week, the university acknowledged that senior officials, including Urbana-Champaign Chancellor Phyllis Wise, had over the past year used private email addresses in an attempt to conceal their communications about the August 2014 decision to fire Salaita after he posted tweets critical of Israel.

Wise resigned suddenly on 6 August under a growing cloud over her conduct. The next day, the university released more than 1,000 pages of the previously hidden emails concerning the Salaita matter and other controversial university business.

As The Electronic Intifada reported, the emails indicate that Wise and others believed that using private addresses and other practices would allow their communications to evade disclosure.

Legal hold

In an 18 September 2014 email related to Salaita, Chancellor Wise wrote from her private account that university spokesperson Robin Kaler “has warned me and others not to use email since we are now in litigation phase. We are doing virtually nothing over our Illinois email addresses. I am even being careful with this email address and deleting after sending.”

The very next day, university employees connected with the Salaita matter, undoubtedly including Wise and others participating in the secret email exchanges, received a warning called a legal hold from the university’s external law firm Perkins Coie.

The Electronic Intifada has obtained a copy of the document, which is published in full below.

A legal hold is standard practice any time litigation is expected and its existence indicates that the outside counsel were being diligent.

Headlined in capitals, “Important legal notice for your immediate attention,” it warns that “Failure to comply with this Notice could subject you and the University to civil and criminal penalties.”

The document reveals that Salaita’s lawyers informed the university’s counsel on 16 September 2014 of their intention to file a lawsuit.

The detailed four-page memo warns emphatically: “Under no circumstances should you delete potentially relevant emails from your computer or from the network server.”

The hold applies to “any documents you create or receive at any time prior to receiving notice that the legal hold has been terminated.”

It includes among other things:

  • Documents related to or in any manner discussing Steven G. Salaita;
  • Documents related to statements on social media by Dr. Salaita in 2014, including any materials provided to the University by any third party commenting on any such statements by Dr. Salaita;
  • Documents relating to the decision not to recommend Dr. Salaita to the Board of Trustees for approval.

It also states that “we are required to preserve relevant documents wherever they are kept,” including “on your work and home computers” and “in your email account (including your personal email account, if you have sent or received relevant documents using that account).”

When did Wise know?

Wise’s email apparently admitting that she had deleted messages related to Salaita was sent one day before the hold notice went out, but after the university had been formally notified by Salaita’s lawyers of possible litigation.

The same email indicates that Wise herself had already been informed that “we are now in litigation phase.”

But it would be bizarre if Wise, the Urbana-Champaign (UIUC) campus’ top executive, only learned of the imminent litigation from the university’s spokesperson rather than being told directly by the lawyers as soon as they knew.

Wise’s official schedule, obtained by Urbana attorney Andrew Scheinman under the Freedom of Information Act (FOIA), shows that Wise was in Urbana-Champaign all day on 16 September 2014. (On 17 September she traveled to Chicago to catch a flight to Portland, Oregon, for a meeting of the board of Nike Corporation. In 2011, Wise was paid $237,000 for sitting on Nike’s board.)

Moreover, Wise would surely have been aware that a week earlier, on 9 September 2014, Salaita held a widely covered press conference at the University YMCA in Champaign where his attorneys announced his intention to sue.

There is no doubt that if Wise, or others, continued to conceal or destroy evidence after the hold was officially imposed, it could have serious adverse consequences for the university’s legal defense against Salaita’s ongoing lawsuit over his firing.

But according to Scheinman, who runs the investigative online publication Samizdat-Startups, Wise was likely advised of her duty to preserve evidence even earlier.

He notes that soon after a 24 July 2014 board meeting at which Salaita was discussed, the name of Scott Rice, the university’s in-house counsel, begins appearing in Salaita-related emails previously released to him under FOIA. Everything in the emails is redacted except for Rice’s name.

“This kind of redaction – nothing but the attorney’s name – indicates UIUC is likely claiming attorney client privilege, which it would only do if they were discussing, e.g., a litigation matter such as likely litigation by Salaita,” Scheinman told The Electronic Intifada.

The fact that Wise and other officials expected, or should have expected, litigation long before the formal legal hold was sent out suggests they already had a legal duty to preserve evidence during a period when Wise admitted to deleting emails.

“I would think Rice would have taken great pains to point out to Wise early on his – Rice’s – duty to UIUC – his client – to prevent any UIUC employees including Wise from destroying documents,” Scheinman said.

“My conclusion is that Wise was likely advised of possible or likely litigation as early as 25 July 2014,” Scheinman added.

Indeed Wise herself admits to anticipating a lawsuit as early as 31 July 2014, the day before she sent a letter to Salaita telling him that his job had been rescinded.

“It will be the beginning of a lawsuit, I am sure I will be deposed no matter who sends the letter,” Wise predicted in an email to Provost Ilesanmi Adesida. “You may need to get ready as well.”

Windfall for Wise

On Wednesday, the board of trustees of the University of Illinois will vote on whether to approve Wise’s golden parachute, a “negotiated” windfall of $400,000.

Though she will give up her $549,000 chancellor’s salary, Wise will also get a faculty appointment that will still pay her $300,000 a year.

In an editorial, The Chicago Tribune criticized the massive sum promised to Wise, coming as it does after a “parade of scandals and the attempts to evade not only public scrutiny but state law through unsavory secrecy.”

In a twist of irony, former board chair Christopher Kennedy, another key figure in Salaita’s firing, also slammed the payment to Wise.

“I wouldn’t give someone $400,000 to leave peaceably if they [did what she did],” Kennedy told the Tribune.

On Tuesday afternoon, the administration of Illinois Governor Bruce Rauner called on the university to reject the $400,000 payment to Wise.

According to the Tribune, the board’s three-member executive committee – Chair Edward McMillan and members James Montgomery and Karen Hasara – will take the decision on behalf of the board.

It should be recalled that Montgomery was the only trustee to vote in favor of Salaita’s appointment in September last year.

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Comments

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James Holstun replied on

Britain's admiral Byng lost an important naval conflict, and was hanged. Voltaire quipped, "It's a good idea to hang an admiral from time to time to encourage the others. . . ."

It's a good idea to fire a chancellor from time to time, for the same reasons--if, in fact, she broke a law. Just as Steven Salaita broke no law and violated no contract, and should be reinstated immediately, so, if she broke a law, Chancellor Wise should not only have her obscene golden parachute rescinded, but she should also be fired from her university position and, if the crime warrants it (and destroying records is an egregious violation of the law), imprisoned for an appropriate length of time.

To see that justice is done.

And to encourage the others.

Hey, I wonder if English professor Cary Nelson, who led the charge to deny Salaita is rights, also destroyed any records? Might be worth checking into.

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susan davis replied on

Ali -- your reporting is very much appreciated here at UIUC. Keep it up!

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Anthony Shaker replied on

Salaita and his lawyers should make this case an example for the Israel lobby, which should be contemplating its future right about now. The Zionists' free ride around government and educational institutions has to come to an end.

Presently, AIPAC's activist bands of traitors, who number in the thousands, are frantically spreading out in 32 states in an effort to destroy the Iran nuclear deal. They are quite busy--maybe even fighting for the survival of their cause. Obama has made it clear while meeting a handful of Zionist leaders that he has every intention to "strike back hard," for once in his presidential career. Does this mean jail time for lobbyists and anyone around Congress who routinely passes on secrets to Israel, knowingly or not?

I hope the Salaita case leads to criminal charges, which would fit the scandalous conduct of university officials and the illicit machinations of Zionist organizations at the University of Illinois. It should, at any rate, indicate the cost for any "American" working to muzzle democratic debate on behalf of a foreign state and to protect a Zionist race colony engaged in genocide against the Palestinians.

Lest we forget, Israel is being investigated by the International Criminal Court. Actively coordinating with international terrorists, it has installed Wahhabi terrorists inside the demilitarized zone in the Golan Heights and continues to provide them with air cover. Besides Saudi Arabia and Turkey, it has been one of the chief sources of terrorism since its 1982 Lebanon invasion. Back then, it installed its "Christian" terrorists in a buffer zone in South Lebanon, who were then crushed by the Lebanese Resistance.

Slowly, Americans and Canadians are recognizing the dangerous dimensions of the Zionist fifth column inside our countries. Everyone working on behalf of a foreign state to undermine citizens' rights and the right of a country to conduct its own independent foreign policy must be stopped.

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tom hall replied on

Nike, that is. Given her remunerative post on the company's board, it might be worthwhile asking whether Nike enjoyed a contractual relationship with the University's athletic department during the Chancellor's tenure. In which instance, the words "conflict of interest" may apply.

And it's a bit rich seeing Kennedy take potshots at Wise's payoff, when he was a leading figure in Salaita's illegal dismissal. Predictably, they're throwing her to the wolves. Still, those lost emails may yet turn up when she decides not to take the fall alone.

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Huda Giddens replied on

Mr. Shaker - you have put all the dots on the i's and crossed the t's. Thank you. I fear for this country as it continues to support Israel and its many nefarious actions and its brash and aggressive violations of human rights . But the tide is definitely turning, and I have no doubt Israel will see its demise as a Jewish state very soon. Any reasonable person, who sees what it's doing to the Palestinians, will have to agree. Dr. Salaita is right in doing his part to expose Israel. I'm hoping the UIUC will see the sense in employing him, and giving him full reign to say what he needs to say about this horrendous Israeli occupation, and Israel's genocidal actions against the Palestinians.

Ali Abunimah

Co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine, now out from Haymarket Books.

Also wrote One Country: A Bold-Proposal to End the Israeli-Palestinian Impasse. Opinions are mine alone.