Francie Frederick

Student Government members registered formal disapproval of the recent actions of UT Regent Wallace Hall, approving a “vote of no confidence” against Hall at their meeting Tuesday.

The joint resolution with the Senate of College Councils, which was passed with 25 SG votes, was proposed in light of recent allegations that Hall violated student privacy, according to Senate president Andrew Clark. SG President Horacio Villarreal and SG Chief Justice Philip Wiseman proposed the resolution together with Clark.   

“We are saying as students that we do not have confidence in Regent Hall to perform his duties,” Clark said.

Hall is currently under investigation by the House Select Committee on Transparency in State Agency Operations for allegedy overstepping his boundaries as a regent. Last week, the commitee heard testimony from UT System employees who said Hall had received documents with unredacted student information typically protected under the Family Educational Rights and Privacy Act.

According to the board’s general counsel Francie Frederick, the information was mistakenly given to Hall after University and UT System officials took unorthodox steps to grant him access to the hundreds of thousands of documents he requested.

“If I were replaying this, we would not hand one document to Regent Hall before someone in my office actually looked at it,” Frederick said in her testimony. “I think we failed him by allowing this to happen.”

After seeing private student information, Hall allegedly showed the documents to his private attorney, Frederick said. 

The legislation was fast-tracked to a vote, and members of student government received the resolution less than an hour before the SG meeting began, according to Melysa Barth, a representative for the College of Education. Typically, legislation must be submitted by midnight on the Friday preceding an SG meeting. 

Barth said the last-minute nature of the resolution left her unable to determine how her constituents felt about Hall’s performance.

“It is not your job to vote on behalf of yourself; it is your job to vote on behalf of your constituents,” Barth said at the meeting.

Business student Garrett Neville, who voted no to the resolution, said he had similar concerns.

“I’m supposed to represent my constituents, and I have not had the chance to hear from them,” Neville said.

Ali Raza, University-wide representative and member of the Liberal Arts Council, said he felt strongly about the importance of the resolution and said he was prepared to represent the desires of the Council. 

“This is almost unanimously supported by the Liberal Arts Council,” Raza said. “I can justify voting in favor of this resolution — it is our job to vote about the contents of this resolution.”

Architecture student representative Andrew Grant Houston said he was frustrated by the attention Hall’s actions were receiving.

“There is a new university being built in Rio Grande … that should be the biggest thing going on this year, but it’s not,” Houston said at the meeting. “It’s being undermined by Regent Wallace Hall’s actions.”

Francie Frederick, a member of the general counsel for the UT System Board of Regents, testified on the ongoing investigation of Hall’s actions as a regent Tuesday morning. In her testimony Frederick explained how Hall shared emails with FERPA-protected information. 

Photo Credit: Jonathan Garza | Daily Texan Staff

During the complex process required to fulfill Regent Wallace Hall’s massive open records requests to the University, Hall was mistakenly given access to private student information — possibly in violation of federal privacy acts — according to testimonies of several UT System lawyers at a House hearing Tuesday.

Testimonies were given as part of the House committee’s ongoing investigation into the recent behavior of Hall, trying to determine if he overstepped his boundaries as regent.

In her testimony, Francie Frederick, who serves as the general counsel for the UT System Board of Regents, said regents must be “diligent in seeking information.” If a regent requires information protected by the Family Educational Rights and Privacy Act, they must have a valid, job-related reason in order to see it, Frederick testified.

“I’m not a FERPA expert, but my understanding is that the regent must have a legitimate educational interest to see FERPA [documents], something related to the regent’s duties,” Frederick said. 

Frederick said over the course of reviewing documents, Hall came across a chain of emails he should not have been allowed to see.

“It had not been determined in advance that [Hall] had legitimate educational interest,” Frederick said. “No determination was made, [the emails] were in the files, and he saw them.”  

According to Frederick, Hall saw the emails after a series of untraditional moves were made in order to fulfill his “massive requests for information.” Because Hall’s requests were so large, University employees turned documents over to System lawyers with the understanding that System employees would redact private information. In her testimony, Frederick said the System employees failed to redact such information in at least a few cases.

“If I were replaying this, we would not hand one document to Regent Hall before someone in my office actually looked at it,” Frederick said. “I think we failed him by allowing this to happen.”

Frederick said her office could not have foreseen the problems that arose as a result of the unexpectedly sizeable requests.

“I don’t think when it started out there was any intention to be disruptive,” Frederick said. “I don’t think anyone could’ve predicted the volume and the spin-off requests.”

Frederick said regents are legally barred from sharing protected documents with outside parties, even if they have demonstrated educational purposes. Despite this legal barrier, Frederick said Hall shared emails containing FERPA-protected information with his private attorneys. Though Hall was required to return the emails, no other steps were taken.

State Rep. Trey Martinez Fischer, D-San Antonio, motioned to have Rusty Hardin, legal counsel to the committee, review Hall’s actions in sharing confidential documents and determine whether Hall committed a crime. The motion passed unanimously.

“I take it they want us to look at and to see if it’s a matter that ought to be referred to prosecuting authorities,” Hardin said after the hearing. 

Barbara Holthaus, the UT System’s senior attorney and privacy coordinator, said FERPA regulations are not always clearly defined. According to Holthaus, UT System handled Hall’s exposure to information protected by FERPA in the correct manner. 

“The remedy under FERPA is to make a concerted effort to get the document returned, ascertain that you have gotten all copies of it and remind the individual that it was given to them in error,” Holthaus said. “The nature of FERPA is that it’s very confusing … FERPA is not a black and white kind of proposition.”

In his testimony, Daniel Sharphorn, general counsel for the UT System, directly contradicted a statement made by Kevin Hegarty, chief financial officer and custodian of records at UT.  

At the first committee hearing, Hegarty said the UT System denied him the opportunity to seek outside counsel while his office was dealing with Hall’s requests. Sharphorn denied this claim at Tuesday’s hearing.

“I went through every email that I have, and I asked one of our office assistants to do the same,” Sharphorn said. “There was nothing in our systems where Mr. Hegarty was asking for outside counsel.”

Sharphorn also provided an explanation for reminding Barry Burgdorf, who resigned as general counsel in April, that attorney-client privilege was still in effect before his testimony in October. 

Sharphorn said he reached out to Burgdorf at Hall’s request.

“I did not think of [Hall’s request] as a directive,” Sharphorn said. “I did it because he was right.”

At the end of the meeting, the board unanimously voted to issue subpoenas to Powers and UT System Chancellor Francisco Cigarroa. Their testimony is scheduled for Dec. 18. 

Correction: An earlier version of the story misattributed a quote about reviewing a motion passed by the committee. Rusty Hardin, legal counsel to the committee, said the quote.

For a public official, the appearance of a conflict of interest often drains public trust as irrevocably as a verified one. Gene Powell’s undisclosed connection to Vanguard, the company the UT System Board of Regents chose in September to build a new children’s hospital partnering with the University of Texas Health Science Center (UTHSC) at San Antonio, presents just such a damaging appearance.

At a specially called meeting last month, Powell, the Board of Regents chairman, oversaw the selection of Vanguard Health Systems to build a $350 million children’s hospital in San Antonio. The hospital will partner with UTHSC-San Antonio, so the Board of Regents was charged with choosing the firm to build the hospital. As chairman, Powell doesn’t vote in board matters along with the other 10 regents, but he presided over the meeting and failed to reveal to many participants that a company called AirStrip Technologies that he co-founded with his son, Dr. Cameron Powell, has a pending business deal with Vanguard. That detail about Vanguard, a Nashville, Tenn.-based company, emerged in an article published Sunday, Dec. 2 by John Tedesco in the San Antonio Express-News, almost one month after the regents made their choice.

As a defense, Powell’s lawyer, Mark Murray, told the Express-News, “When you’re simply presiding over a discussion of others, I’m not sure I would have thought to make that announcement.” The Express-News said Powell “was listed as chairman of AirStrip, and [was] until recently, when the San Antonio Express-News began asking questions about the company.” Subsequent to the newspaper’s prying, AirStrip, which makes smartphone applications for doctors, removed Powell’s biography from the company website.

Francie Frederick, general counsel to the Board of Regents, said Texas law did not require Powell to announce his connection or to recuse himself from the meeting; the Texas Education Code says board members need to disclose a conflict if they have a “substantial interest” in a company seeking to do business with an institution of higher education.

Because Powell is not paid by Vanguard, does not own stock and is not employed by the company, his connection is not a “substantial interest,” according to Frederick. Frederick’s argument pales in comparison to the appearance of a conflict of interest, sloppiness or obfuscation on Powell’s part, which resulted when he failed to act with an abundance of caution and disclose the potential conflict..

The episode is reminiscent of another father-son Board of Regents potential conflict of interest that occurred this time last year, when the UT System Board of Regents took a $10 million stake in MyEdu, a website that collects and makes available to students information about professors and courses at public institutions like UT. The regents claimed the costly investment would improve graduation rates by allowing students — consumers, in their view — to make more informed choices about the courses they selected during registration. More to this point, MyEdu was co-founded by John Cunningham, the son of William Cunningham, a former chancellor of the UT System and president of UT-Austin. William Cunningham invested $175,000 in MyEdu.

Anthony de Bruyn, then a UT System spokesman, wrote at the time in an email to the online news site Inside Higher Ed, “There are no conflicts-of-interest … The vice chancellor and general counsel to the system and the general counsel to the board are responsible for vetting possible conflicts for members of the Board of Regents. In this case, there were no conflicts of interest. Texas law was precisely followed.”

Considering their biographies and professions, it is no surprise the 10 regents have regular run-ins with potential conflicts between their board duties and corporate interests.

In recent years, the UT regents have held out their corporate backgrounds as evidence to bolster their constant drumbeat that universities should be run more like businesses, that college students should make registration and major decisions as if they were consumers and that professors at public institutions should be held accountable for their work product as if they were corporate employees. Many Texans support that line of thinking if only because it pledges to be in the interest of lowering college costs. Many UT students admire the regents’ line of thinking, too. From their freshman year, UT students are made to stand in awe of the job-guaranteeing McCombs School of Business, an outpost of the regents’ cherished principles of efficiency and accountability, and seek jobs as seniors with the most desirable corporate brands. At the same time that they demand efficiency, accountability and promote corporate culture, the regents appear to take advantage of their power as public servants to advance their personal business and financial interests. This, some might reasonably argue, happened with Powell and the selection of Vanguard, causing him as a UT System leader to lose his integrity and credibility.

Transparency calls for disclosing a potential conflict of interest. In this case, there was no good reason for Powell to keep quiet about his connection, however removed, to Vanguard, when the regents were awarding the company $350 million to build yet another UT System hospital.

UT System Board of Regents officials may have made the controversial hire of a special adviser without the necessary recommendation from the chancellor, according to emails obtained by the Houston Chronicle.

In February, the Board of Regents hired Rick O’Donnell to report to the board for two task forces on efficiency and online learning. His salary was originally set at $200,000 per year.

Lawmakers, University officials, alumni and donors expressed concern through statements and letters to the board about O’Donnell’s writings on higher education reform that call for lowered emphasis on research. Concerns centered on O’Donnell’s work with the Texas Public Policy Foundation, a think tank that advocates for more emphasis on teaching versus research at public universities. In response, the board shortened O’Donnell’s appointment and reassigned him to report to System Chancellor Francisco Cigarroa until Aug. 31.

The emails obtained by the Chronicle indicate board chairman Gene Powell and general counsel to the board Francie Frederick created the job posting and made the hiring decision.

The Chronicle reported the chancellor wrote asking for specifics on the position after it was posted online Feb. 11.

“I really do not know full responsibilities — just generalities,” Cigarroa wrote, according to the Chronicle. “Who is going to announce this to our officers? They should not be caught by surprise.”

After the making the hire on Feb. 28, Frederick told Powell to inform the rest of the board and the chancellor of the hire, according to the emails. Four days later, Frederick informed Powell the chancellor was up to date.

The System defended its hiring of the adviser. A spokesman said the hiring process for O’Donnell wasn’t out of the ordinary and adhered to all relevant state regulations.

“It is my understanding the Board Office followed standard and established recruitment and hiring processes as administered by the Office of Employee Services,” said system spokesman Anthony DeBruyn.

System policy makes the board responsible for hiring or appointing all system employees “upon the recommendation of the Chancellor.”