This is a follow-up to my August 23, 2018, post which included links to The Independent Investigation Summary of Findings and additional personnel file documents.
I have now had an opportunity to further review the 23-page The Independent Investigation Summary of Findings. If I was a member of the Special Independent Board Working Group, the following are issues that I would want the Report to address or further address in greater detail:
1. Establish that each member of the Special Independent Board Working Group is in fact independent. This is an important preliminary issue, which is not addressed. Investigations have been held to be inappropriate or inadequate if special committee members are not independent. The Independent Investigation Summary of Findings indicates that the Special Independent Board Working Group members are: Jo Ann Davidson (Chair), Alex Fischer (a current Trustee), Janet Porter (a current Trustee), Alex Shumate (a current Trustee), and Craig Morford. The fact that a person is a current Trustee should not by itself preclude independence. Independence or lack thereof is based more on relationships and the ability or inability to objectively and independently conduct due diligence, evaluate, and deliberate and make decisions. Thus, for example, it has been held that even social relationships also can impact and preclude independence. And the question arises: independent only from Urban Meyers and AD Smith, or also sufficiently independent from the University? Thus, if a Special Committee member believes that retaining Coach Meyers is really, really important to the success and future of the University’s football program, is that Committee member sufficiently independent for the purpose of determining fault or liability, in addition to discipline?
2. The various standards of care or conduct that were required of Urban Meyers and AD Gene Smith.
3. The applicable burdens of proof that were applied to determine whether the conduct and alleged conduct by Urban Meyers and AD Gene Smith was wrongful or not.
4. All of the laws, rules and contract provisions listed at I.A. of The Independent Investigation Summary of Findings including:
A. All applicable Ohio State University policies and procedures;
B. All applicable Title IX rules;
C. All applicable NCAA rules;
D. All applicable Big Ten Rules;
E. All applicable Ohio State Ethics laws;
F. Any other state and federal laws; and
G. All applicable contractual obligations.
5. Evidentiary presumptions that might apply or that could be relevant. Although presumptions generally would not be included in the Summary of Findings, and the investigation is not in or under the jurisdiction of a court of law, sometimes applicable evidentiary presumptions can be relevant or helpful, such as a presumption that may apply if a witness provides less than the best evidence that is available to establish a fact. Additionally, although not generally included in a summary of findings, and tending to be subjective, it might be relevant to consider intangible matters such as the perceived cooperation, transparency, etc., of a witness.
6. Was the fact that no text messages existed that were greater than one year old fully investigated, in addition to the recovery of those text messages and the possible change in settings? This issue is potentially determinative by itself. It can be seriously unlawful to destroy or not preserve evidence after it becomes known that a dispute exists or may exist. The Findings evidence that the possible hiding or destruction of text messages was discussed. On the other hand, text were obtained from other devices. Thus, this issue might have been sufficiently resolved, but I could not make that determination from the Findings.
7. Conclusions in the Summary of Findings for which greater support might be needed, including the conclusion that Courtney Smith generally was not believed. I would have suggested a different approach based on burden of proof and availability or lack of availability of evidence.
8. A discussion about how the Special Independent Board Working Group decided the level of discipline? Whereas this issue would not necessarily be an issue addressed by the investigators in The Independent Investigation Summary of Findings, and there need not necessarily be a discussion of this issue by the Special Independent Board Working Group, nevertheless it would have been helpful to see such a discussion.
That’s all for now. Thanks for reading. David Tate, Esq.
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