UCF just became the first....

[Dogma]

UCF can't do anything on the up-and-up.  That place is a mess.

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UCF keeps O’Leary investigation records secret

UCF: Discrimination investigative report is ‘not UCF business’

Author: Sean Lavin, Special Projects Producer, slavin@wkmg.com
Mike Holfeld, Problem Solver, mholfeld@clickorlando.com

Published On: Oct 21 2015 08:05:19 PM EDT   Updated On: Oct 21 2015 09:33:27 PM EDT

 

More than a year after former Knights coordinator Paul Ferraro filed a lawsuit alleging University of Central Florida coach George O’Leary made racist remarks -- including calling the NFL "one big ru-ru tribe" – the investigative report into the allegation remains secret.

UCF Equal Opportunity and Affirmative Action director Maria Beckman conducted the investigation. But UCF has made conflicting statements regarding on whose behalf it was conducted which could impact whether the report must be made public. 

When news of the lawsuit broke on Sept. 29, 2014, UCF Vice President Grant Heston told the media, "UCF immediately investigated the allegations Mr. Ferraro made when he abruptly abandoned his job. The university's Equal Opportunity and Affirmative Action office found the allegations to be untrue."

After News 6 made a public records request for a copy of the UCF EOAA director’s investigative report, Heston changed his position on Oct. 3, 2014, and denied the public records request on grounds that it "was not UCF business" and instead was UCFAA business.

"UCFAA asked the EO/AA office to conduct the investigation. Therefore, the investigation records are also UCFAA records," Heston said. "Public records are defined as documents made or received in connection with the transaction of official agency business."

UCF Deputy General Counsel Youndy Cook told Ferraro’s attorney that Heston "misspoke regarding on whose behalf the investigation was conducted," according to records obtained by News 6 last fall.

At the time, News 6 questioned Heston about how a record created by a UCF employee – not a UCFAA employee – would not be considered a public record of UCF.

Heston said, "[T]he director of the EEO office was acting on behalf of UCFAA, not in her official capacity, when conducting the investigation."

The Ferraro investigative report is just one of several records related to UCF athletics that UCF has refused to release to the public, citing a controversial public records exemption for direct support organizations, or DSO’s.

One example of a direct support organization is UCF’s Foundation, which raises funds. Alumni who donate can do so without the public seeing how much they donated, thanks to the public records exemption.

But UCF chose to transfer its public athletics department into a private DSO and now claims athletic records, like football contracts, are also confidential records that can’t be released to the public, just like donor information.

"That’s not what it was supposed to do," said attorney Rachel Fugate, with Thomas and LoCicero. "It wasn't supposed to be a means to allow universities to place their functions into a private organization and avoid the public records requirements."

UCF disagrees with Fugate, telling News 6: "Our position is very, very simple. The statute says that DSO records are confidential and exempt. The 5th DCA case [WFTV vs. Seminole County Schools] says that confidential and exempt records cannot be released. This is not about UCF wanting to hide anything. We are simply following the law."

After hearing that UCF did not want to hide anything, News 6 asked UCF whether the following two options would allow it to release the athletic records:

•           What if UCF receives a copy of the coach’s contract – or EEO investigation into athletics – within the meaning of the public record law? Does UCF believe the copy in the hands of UCF is still confidential, even though it’s a record of UCF and not of UCFAA?

•           Since UCF’s counsel just came across the 5th DCA case the other day, is UCF now considering dissolving its DSO and going back to the way FSU runs it athletics program, so UCF won’t have to worry about breaking the law to release athletics records it wants to release?

UCF has not answered those questions.

News 6 has also uncovered that ESPN has challenged UCF on concealing athletic records related to an NCAA recruiting scandal, including access to former Athletic Director Keith Tribble’s emails.

"It is also very unclear whether even the publicly stated purposes of the [direct support] organization fall within the exclusive purposes permitted by statute for such organizations (in which case, the exemption may turn out to be completely without applicability.) We reiterate our entitlement to be provided with the records requested…" wrote ESPN Deputy Chief Counsel Eleanor S. DeVane.

The 2012 letter from ESPN was the only attorney demand letter UCF released to News 6 in response to a public records request seeking all correspondence from lawyers representing ESPN regarding disputes with UCF over access to UCFAA records.

UCF provided no records indicating it ever released the records to ESPN.

Another example of UCF using the exemption to withhold controversial records from the public happened during the Ereck Plancher wrongful death case.

After UCF’s athletic corporation was found liable for Plancher’s death, UCF successfully argued the $10 million jury verdict should be reduced to $200,000 – a cap reserved for state agencies.

Fugate stressed she believed records investigating the death of a student athlete should have been public records.

UCF disagrees.

[2000bull]

So it's a public entity when it gets sued, but it's not when they get a request for public records? Is that what they're saying?

[NCBull]

So it's a public entity when it gets sued, but it's not when they get a request for public records? Is that what they're saying?

That's how I read that too...doesn't make sense.

[raptorcj]

Good post, Dogma. Very crafty bunch over there in Oviedo, makes perfect sense why they'd hire O'Liar. You'd think things like that, and the Plancher case would make them want to be an open book to the public.

[Paisa el Toro]

That just doesn't seem right. So the UCFAA gets the same sovereign immunity protection that UCF (the state school) receives on the liability side of things, but it's not subject to chapter 119 public records law? Private, independent contractors hired by local governments to do work for them are still subject to chapter 119, and the DSO housing the UCFAA should be no different.

Edited October 22, 2015 by Paisa el Toro

[SANJAY]

That's some pretty aggressive lawyering but it is possible UCF is right.  Their argument is that their DSO, UCFAA, is statutorily protected on the records request and also statutorily protected by sovereign immunity if claims are alleged.  The sovereign immunity claim was upheld by the Florida Supreme Court.  Now they are essentially arguing that the legislature intended for entities like UCFAA to have both protections. It's not a common sense argument but it may be what is statutorily allowed.

[raptorcj]

That's some pretty aggressive lawyering but it is possible UCF is right.  Their argument is that their DSO, UCFAA, is statutorily protected on the records request and also statutorily protected by sovereign immunity if claims are alleged.  The sovereign immunity claim was upheld by the Florida Supreme Court.  Now they are essentially arguing that the legislature intended for entities like UCFAA to have both protections. It's not a common sense argument but it may be what is statutorily allowed.

Glad you weighed in, Sanjay. To me, though, this kind of legal hedging only makes them look like they are manipulating the system. That's not how I want my school to look to the public.

[SANJAY]

Glad you weighed in, Sanjay. To me, though, this kind of legal hedging only makes them look like they are manipulating the system. That's not how I want my school to look to the public.

They are taking the position and assuming someone challenges it legally and prevails that will be well down the line.  By that time O'Leary may be gone and a new AD and coach in place at which time the public interest in the story may not be there. It has all the "feel and smell" of something is not right but they're going to let it play out and not release information until they have to by a court order upheld on appeal.

[ambienknights]

There is a fundamental problem with a program that goes back to back conference championships, then winless the next season. Could the player talent gap be that big between recruiting classes it just seems incomprehensible. I'm almost inclined to believe there is some issue with Oleary being hidden, maybe he is going senile or something and the university can't do anything or get him to resign. 

Look at who they beat in the Fiesta bowl, Baylor. Baylor is undefeated this year. What gives UCF? Something is not right over there in Orlando. 

Yes there was a lot of talent and experience that left after last season but Brent Key being promoted to OC by GOL after Taafe Retired is the major root of being 'this bad'. Key has never called plays before the St. Pete Bowl ending last season(which see how bad that game went) and took over officially this season...

 

It could get ugly for O'leary. For the first time publicly UCF doesn't go to bat for him on this contract issue, they set him up to take the blame

 

[ambienknights]

They are taking the position and assuming someone challenges it legally and prevails that will be well down the line.  By that time O'Leary may be gone and a new AD and coach in place at which time the public interest in the story may not be there. It has all the "feel and smell" of something is not right but they're going to let it play out and not release information until they have to by a court order upheld on appeal.

well there might be something in his contract about the HCIW buyout which he already denied so he doesn't want to publicly get called out on Lying again