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UNM sought feedback from Davie’s attorney before making statement

Copyright © 2017 Albuquerque Journal

Shortly before the University of New Mexico’s interim president formally announced the university would hire a second outside agency to advance a preliminary athletics-related investigation, a UNM lawyer sent the statement to head football coach Bob Davie’s personal attorney for comment.

“Please add your thoughts asap,” university counsel Elsa Cole wrote in the subject line of an email she sent to Davie attorney Michael Kennedy on Nov. 20, according to messages recently obtained and posted by independent journalist Daniel Libit of NMfishbowl.com.

UNM never has confirmed that its contract investigators are looking into Davie, one of New Mexico’s highest-paid state employees, and interim President Chaouki Abdallah’s official statement, issued later that day, did not name the football coach.

But officials not only asked for his attorney’s feedback; they apparently heeded it.

After Kennedy sent two emails with suggested changes, Cole responded, “I am having those edits made.”

The extent to which Kennedy influenced the final statement is not clear; one of Kennedy’s emails to Cole included an attachment that UNM did not initially furnish as part of Libit’s public records request, and UNM declined to give the Journal a copy of the pre-edited statement Monday.

But Kennedy’s messages clearly outlined his motivation. He said his proposed changes “are necessary to establish that the ‘Bob Davie investigation’ has concluded and that a broad, university-wide investigation is about to begin,” he wrote. “These changes are critical to ensuring that the upcoming investigation is not perceived as an ongoing Bob Davie investigation.”

UNM spokeswoman Cinnamon Blair referred to Kennedy’s review as a “courtesy” UNM afforded the Davie camp, given media reports that the investigation had targeted Davie. She did not cite any specific precedent for such a practice.

“Coach Davie, through his representative, expressed concerns that he was not being fairly represented through indirect statements the interim president had made to the media – the media has repeatedly referred (directly or indirectly) to our reviews as ‘the Bob Davie investigation.’ After expressing those concerns to University Counsel, his attorney was afforded the courtesy of reviewing an official statement that reflected what had been stated” to the Journal in a meeting the previous week, Blair wrote.

She called Kennedy’s suggestions “non-objectionable” and said Abdallah reviewed the statement before UNM published it online.

UNM in August hired retired federal judge Bruce Black for a preliminary investigation “regarding the conduct of individuals within the UNM Department of Athletics,” according to the contract. It did not identify any individuals or teams but cited issues related to “coaching techniques” and department drug testing rules.

Abdallah said last month that Black completed his work but that some lingering concerns warranted further review. UNM subsequently contracted with the Chicago law firm Hogan Marren Babbo & Rose.

But Black’s findings remain a mystery to most, because the former judge communicated them verbally to Abdallah, thus avoiding possible discovery through a public records request. UNM intentionally has committed little detail to paper to protect the integrity of the investigation, Abdallah said.

The secrecy has drawn ire from the New Mexico Attorney General’s Office, but Abdallah has reiterated his stance.

“To date, there have been no findings. We are continuing to evaluate processes, procedures, and the overall culture of the Athletics Department, and the broader UNM campus, to ensure best business, management, and human relations practices. As we’ve said before, in order to preserve the integrity of the ongoing review, we will refrain from any detailed commentary,” he said in a statement last week.

Despite UNM’s efforts to guard the details, Kennedy said Abdallah “fueled the fire” of suspicion surrounding Davie in comments the interim president made last month to the Journal.

Asked why Black’s contract for the athletics investigation contained so much less detail than Black’s contract for a prior investigation into a former regent’s travel reimbursement requests, Abdallah said there were more issues in this case and “maybe (the regent’s investigation) wasn’t as explosive.”

Abdallah’s comments drew a response from Kennedy.

“Not only did he throw Bob under the bus, he created the (wrongful and damaging) impression that Bob’s past conduct is the primary basis for the upcoming investigation,” Kennedy wrote to Cole on Nov. 19, expressing regret that Davie had deferred to the president’s office when the Journal sought his comments for the same story. “Bob is anxious to have the media understand that virtually every allegation investigated by Judge Black were (sic) unfounded. It has become even more critical that we have an understanding in place before the new investigation is formally announced,” Kennedy wrote.

Asked whether UNM had communicated Black’s findings or the scope of the Hogan Marren inquiry to Davie or Kennedy, Blair said UNM had shared with them “only the public statement and records made public through IPRA requests.”

Kennedy did not respond to emailed Journal questions.

Other documents published by Libit indicate UNM’s interest in the football program and Davie in particular.

For example, Hogan Marren’s Nov. 8 proposal to UNM describes a “proposed engagement to conduct an on-campus investigation of certain allegations of (a) misconduct involving alleged physical abuse of football players and (b) interference with and improper involvement in an investigation of alleged sexual assault by a football player by UNM Police.”

The engagement letter UNM ultimately signed contains far less detailed language. It says the firm will provide UNM legal advice and counsel related to “compliance matters involving federal and state laws and UNM policies and procedures.”

UNM would not confirm it had asked Hogan Marren to investigate allegations that football players had been physically abused or that someone at UNM interfered with a UNM police investigation of a rape allegation against a UNM football player.

“We have asked them to look into several areas and offices across the University based on the preliminary review by Judge Black,” UNM spokesman Dan Jiron said in an email.

Libit also obtained a copy of Davie’s contract that university counsel Cole emailed to a Hogan Marren lawyer. It features handwritten asterisks near several passages that define “unethical conduct,” including refusal to comply with regulatory or policy requirements, and “refusal to furnish information relevant to an investigation of a possible violation of federal or state law or University policy when requested to do so by lawfully authorized federal or state agents or University officials.”

“The marks simply identify duties and responsibilities, as well as performance expectations,” UNM spokesman Jiron said in a statement, noting that they were made by UNM’s Human Resources Department “for context.”

UNM expects Hogan Marren to complete its work next month. It has not filed any reports, Jiron said.

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