Smith admits to 'mistake'
during Septimus testimony
By Ken Fountain
Senior Staff Writer
"I made a mistake," UH System Chancellor/UH
President Arthur K. Smith said in reference to telling former UH assistant
counsel Susan Septimus that a transfer
to another department was contingent on her giving up the right to pursue
and retaliation claims against her then-boss,
General Counsel Dennis Duffy.
"It was never my intent to ask her to surrender
her civil rights," Smith testified Thursday in the federal trial of Septimus'
against the University and the UH System.
Smith said the condition of the release
(which he later rescinded) was part of his effort to resolve "an impasse
employees, make each meet the other halfway,
so that they and the University could move on."
Septimus had filed an internal complaint
of gender discrimination after she was not promoted to a position of general
January 1998. She filed a second complaint
of retaliation in response to a performance appraisal by Duffy, in which
he said she
"exceeds expectations" but "needs to be
more of a team player" and accept his authority.
Septimus' complaints joined those of two
other female Office of General Counsel staff members which were investigated
McElvaney, an outside attorney hired by
the University in order to avoid a conflict of interest.
In April 1998, McElvaney submitted to Smith
a 20-page report of her investigation which concluded, in part, that Duffy
discriminated against Septimus on the
basis of her gender, but that there was insufficient evidence that he had
retaliated against her.
Smith testified that after reading the
report, he found McElvaney's conclusions "lacking in support" and decided
to appoint a committee
of three top UH administrators to evaluate
"I was attempting to be scrupulously fair
and objective," Smith said of appointing the committee, which concluded
after interviewing the
three women complainants and Duffy that
there was no basis for the claims of discrimination and retaliation. But,
the panel concluded,
Duffy should undergo a management training
program to improve his communication skills toward subordinates.
Smith said, "I counseled (Duffy) on the
need for sensitivity and compassion," and he directed him to take the training,
a prospect Duffy
found "humiliating" but nonetheless "responded
(to) in good faith."
Septimus was unsatisfied with this resolution.
Smith testified that on May 29, 1998, he had a "somewhat awkward" meeting
Septimus and her husband Edward Septimus.
Smith said Susan Septimus, who was sobbing, "sometimes uncontrollably,"
told him in
no uncertain terms that she was unwilling
to continue answering to Duffy.
Smith said he had hired Duffy in October
1997 with the directive to turn around the general counsel's office, which
had a poor
reputation in the UH community.
"The (UH System) Board of Regents expected
me to elevate that office to a higher level of accountability," Smith said.
He said his "philosophy" toward University
legal offices, developed as chief executive officer of three other institutions,
was that all
University legal affairs be conducted
through the office of the general counsel, who is accountable to the president.
Smith said that following the May 29 meeting
with Septimus, he sent her a memo offering her two options: continue to
work as an
assistant general counsel under Duffy,
or transfer to a "newly-redefined position" as director of contracts administration
stipulation that she not be able to practice
Asked by Septimus' attorneys if he ever
considered offering her the job as it was originally envisioned, as a lawyer
working in the
contracting department and answering indirectly
to the General Counsel, Smith said he "would have been happy" if she would
such a position, but assumed that she
was intractable in her desire not to report to Duffy.
Smith and Septimus exchanged a series of
letters in which they negotiated the terms of the transfer. In one of the
letters, he told her
she must "cease and desist from this unseemly
campaign" against Duffy.
While Septimus apparently believed this
to be a reference to her ongoing official complaints against Duffy, Smith
said he was in fact
referring to information he had received
stating that she, her husband or others acting in her behalf had sent copies
of the confidential
McElvaney report to a number of outsiders,
including media outlets, Duffy's former employers, the University of Virginia
(from which Duffy had graduated), UHS
Board of Regents members Morrie Abramson and Gary Rosenthal, and U.S. District
David Hittner (a friend and mentor of