Career and Legal Issues Facing the University of California
an interview with Steve Drown of University of California, Davis, Campus Counsel
Vol. 1
February 2001
Page
Steve Drown is the Campus Counsel for the University of California, Davis ("UC Davis"). The Office of the Campus Counsel provides advice and counsel in the development of policy, procedures, and strategy to address a wide range of issues related to the UC Davis campus. The Campus Counsel prepares legal opinions and provides liaison between the campus, the Office of the General Counsel, and outside counsel concerning UC Davis' legal needs and requirements. This office also develops and provides educational seminars on various legal topics of interest to the campus community.
On February 6, 2001, Mr. Drown sat down with the UC Davis Business Law Journal's Brian Anderson to discuss the position of campus counsel and the University's current legal concerns. Mr. Drown addressed many topics, including many of interest to business lawyers and business people. For instance, Mr. Drown discusses the University allowing private developers to build housing on campus property and the University's policy on commercial use of intellectual property developed using university funding, facilities, and personnel.
Q: Can you give a brief summary of your background?
A: I went to undergraduate at the University of California, Berkeley. After graduating, I spent a year in Washington, D.C. and had no interest in law school. After a year in D.C., I learned about all the interesting things attorneys were doing with their law degrees and became interested.
My background was in environmental issues. I had a degree in environmental geography and a minor in biology. So, following D.C., I went to the University of Oregon School of Law. They have a great environmental law program. Following that, I went into private practice in Los Angeles where I represented private agencies and served as special counsel to some governmental entities. I became the firm's specialist in environmental law and land use. I was also the assistant attorney for a couple of cities on a contract basis.
Then, I heard about the University opening in environmental law. I've been with the University of California for 12 years now. I was at the Office of General Counsel for seven and a half to eight years and Davis Campus Counsel for the past four years, responsible for legal issues affecting the campus.
Q: Can you describe the structure of the Office of General Counsel?
A: The Office consists of about 40 attorneys. There's a General Counsel, who is also a senior Vice President of the University. Our obligation as University Counsel, is to the Regents. Campus Counsel is a relatively new development. Berkeley has had one for about 25 years and UCLA for the past 20 years. Campus Counsel provides better services for the campus on-site. UC Davis did not have Campus Counsel until I came here.
Q: What did you do when you were at the Office of General Counsel?
A: I worked system wide. I was involved in some land acquisition, but mostly campus planning and development. We were responsible for long-range development plans that are equivalent to a city master plan. The Universities have to develop a construction planning document to meet its educational needs. Long-range development plans are planning instruments for physical demands to meet the academic needs of the Universities. We developed these plans for all campuses and essentially acted as a city planner for the University, which was a good fit for me. For example, the Center of Arts that is going up now. I advised on all environmental compliance issues. That project had water quality, sewage, Native American remains, and traffic and circulation issues. There was a whole variety of issues and I assisted the campus in dealing with those issues.
Q: What are some current legal issues the University faces?
A: The CLERY Act is an example. There was a series run by the Sacramento Bee on campus safety. All campuses, private and public are subject to the Federal CLERY Act, requiring a report of specified crimes on campuses. The Bee generated an article because a woman on the Davis Campus was assaulted by a boyfriend. The Bee felt Davis was not in compliance with the Act. The Department of Education is conducting an investigation of the entire UC system on compliance with the CLERY Act.
Q: What other issues do you deal as Campus Counsel?
A: One thing about this job is you can't really plan for it - its like a triage and everyday you don't know what's going to happen. At the end of the day, you can be much further behind than when you started. My job in general is to provide advice to the senior administration - the Chancellor and other administration - regarding issues like human relations and staff and personnel issues. I don't provide or serve as a personal attorney for the faculty members. I am the institution's attorney and provide advice regarding operations of the institution. Some issues I deal with involve dues, admissions issues like proposition 209 - outreach and what is permissible for outreach now.
Q: Will the admissions office come to you with proposed criteria for admissions and ask you if their criteria comply with Prop. 209?
A: They typically don't bring me specific criteria. We have very sophisticated folks in those positions and they have a pretty good understanding of what is appropriate and what is not. But if something catches their attention, then they will bring it to me. Under Prop. 209 - particularly after the High Voltage case [See Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537; 12 P.3d 1068 (2000)(affirming that the city's policy requiring project bidders to have a specified percentage women and minority subcontractors violated the state constitution after Proposition 209)], there's not much to question. The answer is generally no. There are some things we can still do, but it's quite limited what we can do with our Affirmative Action war chest.
Q: Other issues?
I get involved in tax issues - local agencies attempting to tax the University. In general, the University enjoys exempt status. We're a Constitutional entity and aren't like any other state agencies. In fact, we're likened to a Fourth Arm of government - granting us extraordinary authority. But that's more of a political issue. I also deal with all sorts of property deals. Use of the University name - I get involved with folks inappropriately using the University name. We send out cease and desist orders - there's a process you have to go through to use the University name.
I'm also involved with issues from the library and special art collections on maintenance and how to deal with donors and donor disputes. Sometimes, 10 years after the fact, a donor will change their heart and we have to decide what to do. Conflict of interest issues. Disability issues arise with students, staff, and faculty. There is a whole variety of employment issues. Environmental issues as well. Faculty issues involve grievances filed by faculty and disciplinary actions taken against the faculty. I advise administrators who govern these actions about what we can and can not do. Financial Aid issues - most of which revolve around prop 209. Whether the University can target a group based on race or gender.
Free Speech issues have been a big issue. For example, we often get complaints about anti-abortion protesters on the quad saying things or holding very offensive signs. People ask if there is something we can do because this is horrible. A lot of our role is actually educating the campus administrators on the parameters of free speech. Basically a person has to be threatening damage to property, self, or others or inciting a disturbance and actually engaged in inciting a disturbance for someone to cross the line and we can limit that speech. We can do reasonable time, place, and manner restrictions, but as long as the person is in the right place and the right time, there is very little we can do in regard to content. So, a lot of it is educating the campus community on the parameters of free speech.
Health Center issues - although we have a hospital attorney that addresses these things.
Historic preservation issues, historic structures, and Native American remains. There has been a recent dispute with the remains of Kennewick Man a 9000-year-old skeleton found on the Columbia River Gorge. [The human skeletal remains that have come to be referred to as the "Kennewick Man", or the "Ancient One", were found in July, 1996, below the surface of Lake Wallula, a pooled part of the Columbia River behind McNary Dam in Kennewick, Washington. Almost immediately controversy developed regarding who was responsible for determining what would be done with the remains. Claims were made by Indian tribes, local officials, and some members of the scientific community. http://www.cr.nps.gov/aad/kennewick/]. A portion of the remains was sent to our anthropology department for DNA testing to determine who it belongs to so they can perform appropriate rituals and ultimately the remains can be returned to that group.
The Department of the Interior was involved in handling the remains and a group of scientists, mostly from academic institutions, challenged the government's decision to repatriate the bones immediately to the first Native American tribe that asked for them. So it was protracted litigation. Meanwhile, our anthropologist, who was doing his DNA analysis was in the middle of all this and there was a lot of back-and-forth because everyone was very suspicious of everyone else - what to do with the remains and how far he should progress in his DNA analysis. Bone fragments we worked with here were actually picked up by three FBI agents and sent to a Federal lab and after negotiations were brought back by three FBI agents to our guy so he could finish his DNA testing. I served as an intermediary in all these negotiations. Housing Issues of students and staff. I was involved in the development of the village across from the Recreation Hall.
Q: Is it common now for a private developer to build on public university property?
A: It is common. It's what all campuses now are doing, some are doing it with dormitories also. It's the common way of doing it now with Apartment buildings offered for University purposes. It is University property and leased to a developer. The developer agrees to build it and in some cases operate it and the development and improvements revert to the University after a given period of time - like 30 years.
Q: Does the developer retain an interest in all the income from the property?
A: I don't know what the exact arrangement is. There are probably limitations on what they can charge and there is probably something tied to the Consumer Price Index on how much they can charge.
Q: What's the University's policy when an employee wants to make commercial use of their intellectual property that was developed using University capital and resources?
A: Under the copyright policy, if the work is done in the course and scope of employment, it's the University's product. However, there can be agreements to share revenue with developers and that is often in the best interest of the University - to encourage entrepreneurial and creative ideas and encourage people to bring them to fruition. There is a similar approach on our patent policy. When you become an employee you're required to sign a patent policy which governs how those intellectual property rights are addressed. Usually it is subject to negotiation, but at the University's discretion. Intellectual property is an increasingly prevalent issue raised by commercial entities that view themselves as competitors of the University.
The University doesn't get involved in marketing or licensing things. It has a licensing office, but the whole idea is to get the ideas into the private marketplace for others to further develop. We're just an intermediary to have the private marketplace develop and market the idea. We address all sorts of records issues which is more interesting than it sounds. Disclosure from faculty records, faculty and staff wanting information from their own records - they generally have access with some limitations. Patient records and student records issues where parents are asking access. The parents don't generally have access unless they demonstrate the student is still a dependent - shown on their IRS 1040. Research issues - agreements, grants, private and public research misconduct. Safety issues - baring campus access. We have a large community of over 40,000 people. We have death threats or other threats to property, but typically people making death threats.
Q: Does the animal rights activist issue come up every year?
A: Yeah, we have that every year and they are entitled to protest in reasonable time, place and manner. We actually try to work with those groups and the police let them know where to protest but tell them where they can't cross the line. These protests are more orchestrated but we have to be vigilant with death threats because people are on the edge. But, these people are entitled to protest so within permissible legal boundaries they are okay. There are also issues specific to the school of law, the school of medicine and the school of vet-med.
Q: What are some issues with the school of law?
A: For instance OCR - Office of Civil Rights investigations. There was an allegation of discrimination following passage of Prop. 209, which limited our ability to engage in affirmative action practices. Our acceptance of underrepresented minorities plummeted, as with every campus, and we got a complaint from groups representing underrepresented minorities that we were engaged in discrimination. This goes to the federal office of Civil Rights and they conducted an investigation that lasted several years.
Guidance and misconduct issues and academic deficiency and dismissal issues. I wish I knew how hard it was to get dismissed - I wouldn't have tried nearly so hard as an undergraduate (laugh).
Student organization issues - often issues arise at graduation ceremonies, if you can have prayer and what kind of prayer.
Transportation and parking fee issues. This is probably the most significant issue on campus for most people. People's right to park in a given place. For some reason, it's just a lightening rod of attention.
University Relations issues - bequests, endowments, development of scholarships and support group issues such as the Cal Aggie Alumni association.
Water rights and water quality issues in connection with water treatment.
The challenging part of this job is that you can't be an expert in all of it. You must use good judgment in what you can handle.
Q: What about hours?
A: We have a hard working campus administration. I'm guessing my hours are generally 8 a.m. to about 6:30 or 7 p.m.. But, I usually don't take a lunch. Private practice is a different mentality because of the emotional toll of a paying client. With this job, you have a little more control over things. What I hear from my contemporaries, even those at the top of their firms, is that they're burnt out and not happy. After the first five years in private practice, when the learning curve slows, you're left with an expertise and certain clients. Invariably, a lot of attorneys are not happy with the subject matter and clients they are left with. The university is a great client, because it's made up of great people and has a noble mission: education.
Q: Last thing - anything that surprised you about the job? What advice to you give people who want to pursue a career as a university lawyer?
A: It's hard to know if I was surprised. I was so naïve when I took this job - I was in environmental law and then took this job. I call it the Platte River - a mile wide and an inch deep. I was just too naïve to be surprised. As for skills - the skills I see in successful attorneys, not just in jobs like this - you definitely need the smarts, but equally important and maybe more important in most cases, are interpersonal skills and the ability to solve problems. Also the ability to diffuse confrontation. Typically, confrontation and aggression are not very successful ways of resolving issues. In terms of credibility, you should be reserved when you're going to pull out your anger.
Another thing - the decision makers ask us to make decisions on their behalf. But, lawyers are not decision makers. Lawyers are hired to give advice to the decision makers, but the ultimate decision should fall to the client.
Last thing - good attorneys don't have much of an ego, maybe for a good reason. Attorney's often serve a variety of functions - they are by design convenient people to blame. That is what we're paid for.
an interview with Steve Drown of University of California, Davis, Campus Counsel
Vol. 1
February 2001
Page
Steve Drown is the Campus Counsel for the University of California, Davis ("UC Davis"). The Office of the Campus Counsel provides advice and counsel in the development of policy, procedures, and strategy to address a wide range of issues related to the UC Davis campus. The Campus Counsel prepares legal opinions and provides liaison between the campus, the Office of the General Counsel, and outside counsel concerning UC Davis' legal needs and requirements. This office also develops and provides educational seminars on various legal topics of interest to the campus community.
On February 6, 2001, Mr. Drown sat down with the UC Davis Business Law Journal's Brian Anderson to discuss the position of campus counsel and the University's current legal concerns. Mr. Drown addressed many topics, including many of interest to business lawyers and business people. For instance, Mr. Drown discusses the University allowing private developers to build housing on campus property and the University's policy on commercial use of intellectual property developed using university funding, facilities, and personnel.
Q: Can you give a brief summary of your background?
A: I went to undergraduate at the University of California, Berkeley. After graduating, I spent a year in Washington, D.C. and had no interest in law school. After a year in D.C., I learned about all the interesting things attorneys were doing with their law degrees and became interested.
My background was in environmental issues. I had a degree in environmental geography and a minor in biology. So, following D.C., I went to the University of Oregon School of Law. They have a great environmental law program. Following that, I went into private practice in Los Angeles where I represented private agencies and served as special counsel to some governmental entities. I became the firm's specialist in environmental law and land use. I was also the assistant attorney for a couple of cities on a contract basis.
Then, I heard about the University opening in environmental law. I've been with the University of California for 12 years now. I was at the Office of General Counsel for seven and a half to eight years and Davis Campus Counsel for the past four years, responsible for legal issues affecting the campus.
Q: Can you describe the structure of the Office of General Counsel?
A: The Office consists of about 40 attorneys. There's a General Counsel, who is also a senior Vice President of the University. Our obligation as University Counsel, is to the Regents. Campus Counsel is a relatively new development. Berkeley has had one for about 25 years and UCLA for the past 20 years. Campus Counsel provides better services for the campus on-site. UC Davis did not have Campus Counsel until I came here.
Q: What did you do when you were at the Office of General Counsel?
A: I worked system wide. I was involved in some land acquisition, but mostly campus planning and development. We were responsible for long-range development plans that are equivalent to a city master plan. The Universities have to develop a construction planning document to meet its educational needs. Long-range development plans are planning instruments for physical demands to meet the academic needs of the Universities. We developed these plans for all campuses and essentially acted as a city planner for the University, which was a good fit for me. For example, the Center of Arts that is going up now. I advised on all environmental compliance issues. That project had water quality, sewage, Native American remains, and traffic and circulation issues. There was a whole variety of issues and I assisted the campus in dealing with those issues.
Q: What are some current legal issues the University faces?
A: The CLERY Act is an example. There was a series run by the Sacramento Bee on campus safety. All campuses, private and public are subject to the Federal CLERY Act, requiring a report of specified crimes on campuses. The Bee generated an article because a woman on the Davis Campus was assaulted by a boyfriend. The Bee felt Davis was not in compliance with the Act. The Department of Education is conducting an investigation of the entire UC system on compliance with the CLERY Act.
Q: What other issues do you deal as Campus Counsel?
A: One thing about this job is you can't really plan for it - its like a triage and everyday you don't know what's going to happen. At the end of the day, you can be much further behind than when you started. My job in general is to provide advice to the senior administration - the Chancellor and other administration - regarding issues like human relations and staff and personnel issues. I don't provide or serve as a personal attorney for the faculty members. I am the institution's attorney and provide advice regarding operations of the institution. Some issues I deal with involve dues, admissions issues like proposition 209 - outreach and what is permissible for outreach now.
Q: Will the admissions office come to you with proposed criteria for admissions and ask you if their criteria comply with Prop. 209?
A: They typically don't bring me specific criteria. We have very sophisticated folks in those positions and they have a pretty good understanding of what is appropriate and what is not. But if something catches their attention, then they will bring it to me. Under Prop. 209 - particularly after the High Voltage case [See Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537; 12 P.3d 1068 (2000)(affirming that the city's policy requiring project bidders to have a specified percentage women and minority subcontractors violated the state constitution after Proposition 209)], there's not much to question. The answer is generally no. There are some things we can still do, but it's quite limited what we can do with our Affirmative Action war chest.
Q: Other issues?
I get involved in tax issues - local agencies attempting to tax the University. In general, the University enjoys exempt status. We're a Constitutional entity and aren't like any other state agencies. In fact, we're likened to a Fourth Arm of government - granting us extraordinary authority. But that's more of a political issue. I also deal with all sorts of property deals. Use of the University name - I get involved with folks inappropriately using the University name. We send out cease and desist orders - there's a process you have to go through to use the University name.
I'm also involved with issues from the library and special art collections on maintenance and how to deal with donors and donor disputes. Sometimes, 10 years after the fact, a donor will change their heart and we have to decide what to do. Conflict of interest issues. Disability issues arise with students, staff, and faculty. There is a whole variety of employment issues. Environmental issues as well. Faculty issues involve grievances filed by faculty and disciplinary actions taken against the faculty. I advise administrators who govern these actions about what we can and can not do. Financial Aid issues - most of which revolve around prop 209. Whether the University can target a group based on race or gender.
Free Speech issues have been a big issue. For example, we often get complaints about anti-abortion protesters on the quad saying things or holding very offensive signs. People ask if there is something we can do because this is horrible. A lot of our role is actually educating the campus administrators on the parameters of free speech. Basically a person has to be threatening damage to property, self, or others or inciting a disturbance and actually engaged in inciting a disturbance for someone to cross the line and we can limit that speech. We can do reasonable time, place, and manner restrictions, but as long as the person is in the right place and the right time, there is very little we can do in regard to content. So, a lot of it is educating the campus community on the parameters of free speech.
Health Center issues - although we have a hospital attorney that addresses these things.
Historic preservation issues, historic structures, and Native American remains. There has been a recent dispute with the remains of Kennewick Man a 9000-year-old skeleton found on the Columbia River Gorge. [The human skeletal remains that have come to be referred to as the "Kennewick Man", or the "Ancient One", were found in July, 1996, below the surface of Lake Wallula, a pooled part of the Columbia River behind McNary Dam in Kennewick, Washington. Almost immediately controversy developed regarding who was responsible for determining what would be done with the remains. Claims were made by Indian tribes, local officials, and some members of the scientific community. http://www.cr.nps.gov/aad/kennewick/]. A portion of the remains was sent to our anthropology department for DNA testing to determine who it belongs to so they can perform appropriate rituals and ultimately the remains can be returned to that group.
The Department of the Interior was involved in handling the remains and a group of scientists, mostly from academic institutions, challenged the government's decision to repatriate the bones immediately to the first Native American tribe that asked for them. So it was protracted litigation. Meanwhile, our anthropologist, who was doing his DNA analysis was in the middle of all this and there was a lot of back-and-forth because everyone was very suspicious of everyone else - what to do with the remains and how far he should progress in his DNA analysis. Bone fragments we worked with here were actually picked up by three FBI agents and sent to a Federal lab and after negotiations were brought back by three FBI agents to our guy so he could finish his DNA testing. I served as an intermediary in all these negotiations. Housing Issues of students and staff. I was involved in the development of the village across from the Recreation Hall.
Q: Is it common now for a private developer to build on public university property?
A: It is common. It's what all campuses now are doing, some are doing it with dormitories also. It's the common way of doing it now with Apartment buildings offered for University purposes. It is University property and leased to a developer. The developer agrees to build it and in some cases operate it and the development and improvements revert to the University after a given period of time - like 30 years.
Q: Does the developer retain an interest in all the income from the property?
A: I don't know what the exact arrangement is. There are probably limitations on what they can charge and there is probably something tied to the Consumer Price Index on how much they can charge.
Q: What's the University's policy when an employee wants to make commercial use of their intellectual property that was developed using University capital and resources?
A: Under the copyright policy, if the work is done in the course and scope of employment, it's the University's product. However, there can be agreements to share revenue with developers and that is often in the best interest of the University - to encourage entrepreneurial and creative ideas and encourage people to bring them to fruition. There is a similar approach on our patent policy. When you become an employee you're required to sign a patent policy which governs how those intellectual property rights are addressed. Usually it is subject to negotiation, but at the University's discretion. Intellectual property is an increasingly prevalent issue raised by commercial entities that view themselves as competitors of the University.
The University doesn't get involved in marketing or licensing things. It has a licensing office, but the whole idea is to get the ideas into the private marketplace for others to further develop. We're just an intermediary to have the private marketplace develop and market the idea. We address all sorts of records issues which is more interesting than it sounds. Disclosure from faculty records, faculty and staff wanting information from their own records - they generally have access with some limitations. Patient records and student records issues where parents are asking access. The parents don't generally have access unless they demonstrate the student is still a dependent - shown on their IRS 1040. Research issues - agreements, grants, private and public research misconduct. Safety issues - baring campus access. We have a large community of over 40,000 people. We have death threats or other threats to property, but typically people making death threats.
Q: Does the animal rights activist issue come up every year?
A: Yeah, we have that every year and they are entitled to protest in reasonable time, place and manner. We actually try to work with those groups and the police let them know where to protest but tell them where they can't cross the line. These protests are more orchestrated but we have to be vigilant with death threats because people are on the edge. But, these people are entitled to protest so within permissible legal boundaries they are okay. There are also issues specific to the school of law, the school of medicine and the school of vet-med.
Q: What are some issues with the school of law?
A: For instance OCR - Office of Civil Rights investigations. There was an allegation of discrimination following passage of Prop. 209, which limited our ability to engage in affirmative action practices. Our acceptance of underrepresented minorities plummeted, as with every campus, and we got a complaint from groups representing underrepresented minorities that we were engaged in discrimination. This goes to the federal office of Civil Rights and they conducted an investigation that lasted several years.
Guidance and misconduct issues and academic deficiency and dismissal issues. I wish I knew how hard it was to get dismissed - I wouldn't have tried nearly so hard as an undergraduate (laugh).
Student organization issues - often issues arise at graduation ceremonies, if you can have prayer and what kind of prayer.
Transportation and parking fee issues. This is probably the most significant issue on campus for most people. People's right to park in a given place. For some reason, it's just a lightening rod of attention.
University Relations issues - bequests, endowments, development of scholarships and support group issues such as the Cal Aggie Alumni association.
Water rights and water quality issues in connection with water treatment.
The challenging part of this job is that you can't be an expert in all of it. You must use good judgment in what you can handle.
Q: What about hours?
A: We have a hard working campus administration. I'm guessing my hours are generally 8 a.m. to about 6:30 or 7 p.m.. But, I usually don't take a lunch. Private practice is a different mentality because of the emotional toll of a paying client. With this job, you have a little more control over things. What I hear from my contemporaries, even those at the top of their firms, is that they're burnt out and not happy. After the first five years in private practice, when the learning curve slows, you're left with an expertise and certain clients. Invariably, a lot of attorneys are not happy with the subject matter and clients they are left with. The university is a great client, because it's made up of great people and has a noble mission: education.
Q: Last thing - anything that surprised you about the job? What advice to you give people who want to pursue a career as a university lawyer?
A: It's hard to know if I was surprised. I was so naïve when I took this job - I was in environmental law and then took this job. I call it the Platte River - a mile wide and an inch deep. I was just too naïve to be surprised. As for skills - the skills I see in successful attorneys, not just in jobs like this - you definitely need the smarts, but equally important and maybe more important in most cases, are interpersonal skills and the ability to solve problems. Also the ability to diffuse confrontation. Typically, confrontation and aggression are not very successful ways of resolving issues. In terms of credibility, you should be reserved when you're going to pull out your anger.
Another thing - the decision makers ask us to make decisions on their behalf. But, lawyers are not decision makers. Lawyers are hired to give advice to the decision makers, but the ultimate decision should fall to the client.
Last thing - good attorneys don't have much of an ego, maybe for a good reason. Attorney's often serve a variety of functions - they are by design convenient people to blame. That is what we're paid for.