Dunwell v. University of Arizona, 2

• Decision Date: 29 December 1982
• Docket Number: No. 2,CA-CIV,2
• Citation: 657 P.2d 917,134 Ariz. 504
• Parties: , 9 Ed. Law Rep. 378 Judith DUNWELL and Phillip A. Matier, Plaintiffs/Appellees, v. UNIVERSITY OF ARIZONA, an educational institution of the State of Arizona; John Schaefer, President of University of Arizona; and the Arizona Board of Regents, a body corporate and an agency of the State of Arizona, Defendants/Appellants. 4407.
• Court: Arizona Court of Appeals

Page 917

657 P.2d 917

134 Ariz. 504, 9 Ed. Law Rep. 378

Judith DUNWELL and Phillip A. Matier, Plaintiffs/Appellees, v. UNIVERSITY OF ARIZONA, an educational institution of the State of Arizona; John Schaefer, President of University of Arizona; and the Arizona Board of Regents, a body corporate and an agency of the State of Arizona, Defendants/Appellants.

No. 2 CA-CIV 4407.

Court of Appeals of Arizona Division 2.

Dec. 29, 1982.

Brown & Bain, P.A. by David J. Bodney, and Bonn, Muldoon & Luscher by Brian P. Muldoon, Phoenix, for plaintiffs/appellees.

Lesher, Clausen & Borodkin, P.C. by Robert O. Lesher and Robert M. Jarrett, Jr., Tucson, for defendants/appellants.

OPINION

HOWARD, Chief Judge.

This is an appeal from a judgment in a special action filed by appellees in the superior court pursuant to A.R.S. § 39-121.02(A) which allows a person who has requested to examine or copy public records and who has been denied access to the same or the right to copy them to appeal the denial through a special action procedure in the superior court. The issues were joined and after a three-day trial and an in camera inspection of the requested documents, the trial court, after excising a handful of scandalous and irrelevant material, ordered appellants to release the documents.

Appellants complied with the order. Following their release the trial court heard evidence relating to attorney's fees and awarded appellees $17,378.50 in attorney's fees plus their costs. Appellants then filed this appeal contending that the trial court erred in requiring disclosure of the materials and erred in granting appellees their attorney's fees.

The record discloses that in July 1981, during the course of a criminal trial of former University of Arizona football coach Tony Mason, charges were made that contributions to the Wildcat Club, a booster organization, had been used for a hidden "slush fund" to provide financial assistance to student athletes and coaches. It was alleged that this fund was administered by the staff of the athletic department and was operated with the tacit approval of the director of athletics, David Strack. Since the existence of such fund might have been in violation of the rules and regulations of the NCAA and Pac-10 Conference, Dr. John Schaefer, president of the university, appointed an ad hoc committee to investigate the allegations. The committee consisted of Dr. Munsinger, a university vice-president who was being considered as a replacement for Dr. Schaefer; Richard Fish, a Tucson attorney; and Dr. Russell Barefield, chairman of the Department of Accounting at the university. The committee staff consisted of Dr. Munsinger's administrative assistant, Linda Tansik, John Monnier, a university assistant vice-president; and Robert M. Jarrett, a university staff attorney. The committee also hired two private investigators.

Once witnesses were located by the staff or by the private investigators, they were interviewed by the full committee. Each witness was read the following statement before he was interviewed by the full committee:

"This is not a criminal investigation. However, any statement you make will not be held in confidence, and it is not our intention to require you to answer any questions if you feel that the answer you would give would subject you to criminal prosecution. You may, if you choose, exercise your right against self-incrimination at any time." (Emphasis added)

The committee had resolved at its first meeting that it would not release any information to the press but only forward it to the president of the university. After the information was forwarded, the committee understood that it had no control over what the president did with the information.

All of the witness interviews were recorded in shorthand by Dr. Munsinger's administrative assistant, Linda Tansik. She then transcribed her shorthand into a question-and-answer format and distributed the interviews to the committee. Her typewritten reports were fair and accurate summaries of the testimony and there was not a single instance in which any substantive corrections were ever requested. The committee relied on Ms. Tansik's interview transcripts to prepare its report which was sent to President Schaefer. None of the witnesses who appeared before the committee requested a copy of the transcript of their interview to check it for accuracy or otherwise, nor did the committee require that the witnesses make such a check.

On November 3, 1981, the committee sent a nine-page summary of its findings to Dr. Schaefer, knowing that the report would be released publicly by him. None of the interview reports or background materials were forwarded to Dr. Schaefer. The report included a brief description of some of the evidence in general terms and elaborated on the reasons that appellees and coaches tend to utilize improper funds. Concluding that "... disciplinary action would be procedurally inappropriate at this time ..." the committee's only recommendations were that a statement condemning such practices be added to the employee manual and that the university establish its own "emergency fund" for student athletes. The committee concluded that there was no evidence of any on-going slush fund in the athletic department.

On November 11, 1981, Dr. Schaefer publicly released the committee's report and announced that no disciplinary action would be taken against any university employee. At the trial, Dr. Schaefer admitted that he terminated the investigation on November 11 without seeing any of the transcripts of the witnesses' interviews or other background documents. He was prepared to issue a clean bill of health based only on the committee's report. It was also developed at the trial that members of the committee and its staff did not place in the report certain damaging information. For example, one of the chief controversies in the investigation was whether David Strack, the director of athletics, knew about the slush fund. The report states that "Mr. Daniel [the booster who administered the slush fund] has indicated that the director of athletics had a general knowledge of the fund but might well have been uninformed concerning the details of the operation." In fact, the record shows Mr. Daniel had been interviewed by the Arizona Daily Star and in that interview said that he had told the committee that Strack not only knew about the slush fund, but had ordered Daniel to "... burn the receipts."

Suspicions arose among people from the news media, including the appellees, reporters for the Arizona Daily Wildcat, the campus newspaper. For instance, the final report did not identify students who received improper payments or benefits from the fund. The report disregarded information that there was perhaps a second slush fund in operation and it made no mention of allegations that the tuition for certain student athletes was paid out of another improper fund. Furthermore although the slush fund existed at least until 1977, the only improper transactions that were specified in the report...