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The Daily Tar Heel

Wake County judge orders mediation in media's lawsuit against UNC

A superior court judge denied the University's request to toss out its lawsuit with 10 media organizations, instead ordering the two sides to go to mediation over the University's refusal to release the names of employees facing disciplinary action for their involvement in the academic fraud outlined in the Wainstein report.

Donald Stephens, chief superior judge in Wake County, said he wanted to see the case resolved in the next couple of weeks during a hearing in Raleigh on Friday. 

"It needs to be done soon ... this is an important conversation to have," Stephens said. 

Ten media organizations, including The Daily Tar Heel, filed the lawsuit at the end of November after the University refused to identify the nine individuals Chancellor Carol Folt said were facing disciplinary action during a press conference announcing the release of the Wainstein report in October. 

At the Oct. 22 press conference, Folt said four employees had already been terminated because of their involvement in the decades-long scandal, during which 3100 students received credit for a bogus paper classes. The day after the report was released, a source familiar with the situation confirmed the names of eight of the nine employees facing disciplinary action at UNC for The Daily Tar Heel. 

A murky response

The University's lawyers from the North Carolina Attorney General's office, filed a motion to dismiss the case before the hearing, which Judge Stephens denied. 

Kimberly Potter, a lawyer representing UNC, said the University has complied with state public record and human resources laws by supplying the documents it is allowed to give to the media. 

But Hugh Stevens, the media organizations' attorney, said the University is interpreting the public records law in an inappropriate fashion. 

As an example, Stevens used Jaimie Lee, an academic counselor implicated in the Wainstein report who was fired by UNC following the release of the report. 

Stevens said his clients requested the personnel files of the nine employees facing disciplinary action immediately following the release of the Wainstein report on Oct. 22. Lee's personnel file dated Nov. 10, which was released to news outlets a couple days after the report, stated she was still an employee at UNC.

The University eventually announced Lee's firing a month after the report's release — the date of her dismissal was listed as Oct. 22. 

"That's an example of the murkiness of how the University is responding to these requests," Stevens said.

Potter said the University is respecting the employees' right to privacy, and will not release the names of those under disciplinary review until all appeals have been exhausted — processes that, depending on the tenure and position status of the employee under review, could take months.

"These employees have the same due process as other state employees," Potter said.

'Heads will roll'

Judge Stephens was troubled by the fact that Chancellor Carol Folt was willing to announce that nine employees were going to face disciplinary action — including four employees who had already been terminated — without giving the names of those employees. 

"It’s one thing to say a terrible thing has happened and heads will roll, but I’m not going to tell you what happened and whose heads," he said. 

Stephens added that since the announcement was made by the head of the University — giving it the impression of a final statement — it didn't appear to be a matter that would be overturned through appeals.

"Otherwise, why in the world would you make such a public declaration?" Stephens. 

While Folt used her own discretion when she announced that she would take disciplinary action  against employees, Stephens said she might not have gone far enough. State law gives department heads the power to publicly announce employees' terminations.

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"She arguably may have abused this by not providing more information (on the employees under review)," he said.

A timeline for mediation

Stevens, the media outlets' lawyer, said the Wainstein report names more than just nine current UNC employees — meaning Folt's decision to keep quiet about those facing disciplinary action created a burden for any employee named in the Wainstein report.

"Right now, they are painted with the same tar brush as the nine because we don't know," Stevens said. 

As for the impending mediation, Judge Stephens said he wanted the process to move quickly. Following the hearing, he met with both parties' lawyers in his chambers and said the mediation must be completed by the end of the first week of January.

"I think the courts do have jurisdiction over this matter ... I am going to compel you to mediation," he said.

When Potter expressed her worries about the immediate availability of a mediator with the holiday season growing near. Stephens said it should be not a point of concern for either party.

"I bet you could find one — if you need my help, I'll help you," he said.

"Let's get this done, ok?"