Law.com – The University of Iowa is having a bad case of déjà vu. Six years ago school officials were criticized for mishandling an investigation of an on-campus rape, and its general counsel was faulted for a conflict of interest.
This fall the university took heat for botching another sexual assault inquiry, and general counsel Marcus Mills-who was associate GC during the previous investigation-was also blamed for wearing too many hats. Only unlike his old boss, Mills lost his job. Months after Mills’s September 23 firing, the incident continues to roil the school.
In a statement released the day Mills got the boot, university president Sally Mason cited the report of an outside law firm that had reviewed the rape investigation. The review severely criticized Mills not only for a conflict of interest, but for failing to inform the university’s regents about a key document-a letter from the mother of the alleged assault victim. The regents only learned about the letter when it was published in a newspaper.
Mills says he did the best he could. “Did I hide documents or do anything inappropriate? Absolutely not.” Knowing what he knows now, would he have done anything differently? He says he would have forced the president and others who knew about the letter to decide whether they were going to give it to the regents. If he’d done that, “I probably wouldn’t have put my job in jeopardy.”
Mills says he hasn’t decided whether to take action against the university. But a second official who was fired for the botched inquiry-vice president Phillip Jones-filed a $2.25 million wrongful termination claim in November.
When Mason fired Mills, she’d only been president for a year and was under great pressure. A legislator and a regent had publicly demanded that someone be held accountable for mishandling the inquiry. Mills had worked at the school for 17 years, the last three as GC. Many members of the university community were shocked not just by the speed of his firing, but by what they viewed as a lack of due process. A petition in his support quickly garnered almost 200 names.
According to Alice Vachss, a former New York sex crimes prosecutor and nationally recognized expert on the subject, “Mills did a number of things wrong. But I’m not sure they’re connected to why he got fired.” Vachss, who’s been hired by about 25 schools to consult on sexual assault investigations, says that Mills got fired “because he was an easy target.”
The case started in October 2007, when a student athlete reported that she’d been raped in a dorm room by a football player after a party. Evidence then surfaced that she’d also been raped by a second player after she lost consciousness. The university launched three inquiries, including one conducted by a lawyer for the regents. By the following month, the alleged victim and her parents had grown disenchanted with the investigative process, and contacted the local prosecutor. She was threatened and harassed by other football players, and later withdrew from the university.
In November 2007 the student’s mother faxed a letter to school officials expressing her frustration. Her two main questions: “We asked over and over and over, what is the process?” And: “Who is in charge?” The letter was shared with top administrators, including Mason and Mills, but not the regents.
In May 2008 the two football players were indicted. (They were awaiting trial at press time.) In June the regents’ lawyer released a report finding that the university handled the investigation properly. That incensed the mother of the alleged victim, who gave a copy of her letter to a local paper. The regents were furious when they learned about the letter. They quickly hired the Stolar Partnership, a St. Louis law firm, to find out what happened.
Stolar delivered its report in September. Mason was judged largely blameless because “she relied on her general counsel to oversee the university’s response.” But the report criticized Mills for acting as liaison to the alleged victim. The GC’s role, it stated, “is to represent the university and its executive officers, administrators, faculty, and staff, all in their official capacities. As legal counsel for the university, there is a substantial appearance of a conflict of interest if such counsel is dealing with an unrepresented complainant.”
The report then cited a 2002 case in which another student athlete claimed that she’d been raped by a basketball player who eventually pled guilty to a misdemeanor. A faculty committee appointed to review that case criticized many aspects of the university’s response. One problem, the committee noted, was that then-GC Mark Schantz played a dual role-he was both the school’s attorney, and the administrator to whom the athletic department reported. That “had the potential to create serious confusion,” the committee wrote.
Stolar found that Mills was in an analogous situation. He didn’t have the same conflict that Schantz had, since the general counsel no longer oversaw the athletic department. But Mills managed the latest investigation, communicated with the family, and represented the school’s interests. That combination created “the strong potential to obstruct the university’s ability to obtain the best outcome for the alleged victim and the perpetrator,” the Stolar lawyers wrote.
Finally, the report found that Mills mishandled his communications with the parents. He had a half-dozen phone conversations with the father, who told the Stolar lawyers that he was very unhappy with what Mills had said. For example, the father complained that the football players were still living in the same dorm as his daughter. He said that Mills’s response was that the bureaucracy moves slowly.
As for the letter that the mother had sent to the school, Mills admitted to the Stolar lawyers that failing to pass it along to the regents was a mistake. Though the report didn’t find him guilty of wrongdoing, it said his actions “likely contributed to allegations of a university cover-up.”
On the same day that he was terminated, Mills gave Mason a written response to the Stolar report. He wrote that he wasn’t asked to manage the rape investigation, and never attempted to. The Iowa Rules of Professional Conduct say nothing about communicating with an unrepresented complainant. Nor did his communication with the family violate ethics rules, he added, because he only discussed questions of procedure and the status of the investigation.
Mills acknowledged that, in hindsight, he wishes he’d informed the regents about the mother’s letter. But he knew she’d asked whether it would become public if she sent it to them, and had declined to participate in the board’s investigation. He interpreted this to mean that she didn’t want the board to see it.
Vachss, the former prosecutor, faults Mills for communicating with the family. “Why was he talking to them?” she asks. “As the lead investigator? As the person who is going to make recommendations to the university on response? They could not have understood the capacity that he was talking to them in.”
The proper role of the GC, Vachss adds, is not to be a direct party to the investigation. It’s to ensure the institution has a fair procedure that protects the rights of everyone involved-and then to monitor the investigators’ compliance. The most egregious violation of due process, Vachss concludes, was the unpunished harassment of the alleged victim. The message this sends to future victims, she says, can destroy even the very best policy.