A System Divided?

University of North Carolina system's top lawyer issues cease-and-desist letter to outside lawyer said to be representing some of its board members.

November 6, 2019
 
UNC system
The UNC system has sent a cease-and-desist letter to a lawyer it says has represented himself as working for its board when he has not been authorized to do so. He has worked for some board members in the past.

Governance tensions within the University of North Carolina system are again on display after the system’s top lawyer demanded that an outside attorney with ties to members of the system’s governing board stop portraying himself as representing the system.

That outside lawyer, Peter Romary, has represented himself as conducting investigative work on behalf of the system's Board of Governors, East Carolina University's Board of Trustees or ECU, according to cease-and-desist letters sent by the UNC system’s general counsel. Romary maintains that he never told anyone he worked for the entities in question, only that he said he represents people on the boards.

The back-and-forth is tied to some of the most controversial recent events and leaders in the UNC system. Romary has at different times acknowledged working for two members of the system Board of Governors: Harry Smith and Tom Fetzer. Fetzer hired Romary to review candidates for the Western Carolina University chancellorship in a search that collapsed in 2018 amid accusations that Fetzer breached confidentiality. Smith has been the subject of fierce criticism for his involvement in East Carolina issues.

Romary has not said who, exactly, he was working for when he was conducting the investigation that led to the cease-and-desist letter. He cited nondisclosure agreements in an email to Inside Higher Ed Tuesday.

The UNC system’s letters to Romary were first detailed Monday by WBTV. Also on Monday, the UNC system announced that Smith has given notice of his resignation from the board, effective in 90 days or until state lawmakers select his replacement. Smith gave up the system board chairmanship in October but said at the time he would continue to serve through the rest of his term, set to end in 2021.

A UNC system spokesman declined comment when asked about the fact that the cease-and-desist letters and related documents were made public on the same day as Smith’s resignation. Smith and Fetzer did not respond to requests for comment Tuesday.

The system’s cease-and-desist letters come in the wake of a scandal involving Dan Gerlach, who until last month was interim chancellor of East Carolina. Gerlach resigned after anonymously provided photos and video showed him drinking at bars with students at the end of September and making physical contact with women.

Gerlach apologized, saying he was the only one to hold accountable. But he also alleged he was the victim of a setup. The UNC system employed an outside law firm to investigate “every aspect” of the case, The Daily Reflector of Greenville, N.C., reported.

That law firm was Womble, Bond Dickinson. Romary is partner and general counsel at QVerity, a screening firm.

But Romary last month asked the City of Greenville to review surveillance video showing Gerlach after he left bars on the night in question, documents show.

“I have been retained by some private parties, including a couple of members of the ECU Board of Trustees and UNC Board of Governors -- this is in response to an ever changing story from Dan Gerlach and an allegation of a ‘set up’ by him and some who support him,” Romary wrote in an Oct. 15 letter to Greenville’s assistant city attorney.

“The ‘set up’ (which has been outlined online by some) states that a ‘Cabal’ of Judges, Lawyers, BoT, BoG and former political opponents paid 2 off duty police officers to lure Gerlach from Sup Dogs to Club 519,” the letter said. “There, so the theory goes, the officers had a ‘prostitute’ they had picked up previously for sale of drugs, waiting to ‘put Gerlach in compromising positions’ so that he could be photographed.”

Romary would go on to petition to obtain videos on behalf of the Police Benevolent Association and Fraternal Order of Police.

The UNC system’s senior vice president and general counsel, Thomas Shanahan, wrote Romary on Oct. 28 and Nov. 1 to demand that he not represent himself as an employee or agent of the university system or other related entities. Shanahan also asked Romary to retain documents and data related to university business and to return public records in his possession.

“Claiming that you represent ‘members’ of the UNC Board of Governors or the ECU Board of Trustees is misleading and inaccurate in several respects, and still implies that you have official status or recognition as an agent or employee of the University or its officials,” Shanahan wrote in his Nov. 1 letter. “You do not and did not. Furthermore, no member of the Board of Governors or any of the Boards of Trustees have the authority to engage you or hire you on behalf of the University or any of its boards.”

Shanahan’s Nov. 1 letter includes more details about the UNC system’s investigation of the situation. It says the system’s outside law firm reported that Romary had “represented to an ECU employee” that he conducted investigative work on behalf of the Board of Governors.

On Aug. 2, the system office received an email from Smith with a complaint from an ECU employee, but university investigators determined that Romary, not the employee, emailed the complaint to Smith. The email was sent after Romary stated he was conducting investigative work on behalf of the Board of Governors, according to Shanahan’s letter.

Romary told Inside Higher Ed that he has nothing “of a confidential nature from UNC or any institutions.” He has never worked for the system Board of Governors or ECU Board of Trustees and has only said he represents people on those boards, he said. Asked whether saying he represents people on the boards invites confusion over whether he is employed by the full boards or by individuals, he said it does not:

“No not at all. It's an identifier -- again, much (most) of my work is done in DC, NYC and London and we will use things like private client whos serves on CFR / SEC / FED -- as long as you say client ‘who works on’ you are golden, because you are not saying ‘I represent board’ -- I am more careful (risk management) and I will put in ‘individual party // parties’ that adds in that extra separation. You find people move from place to place // lawyer to lawyer (hedge to hedge // investment fund // bank etc).”

Romary started out “looking for intel for folks who wanted NONE of the allegations to be true,” he said in an email, also sharing a link to an op-ed saying Gerlach “did himself in.” The column “has been doing the rounds on social media today,” Romary added.

Now, Romary hopes the story is over.

"It seems a couple of folks at UNC want to make ME a story and the question is WHY??" he wrote.

Romary also referenced being from the United Kingdom. The courts take a “very dim view” of libel in England, he wrote, adding that he has offered “them a chance to retract” and is waiting to see if they do.

Asked to respond to several of Romary’s emails, a UNC system spokesman declined to comment at length.

“The UNC System expects Mr. Romary to fully comply with the cease and desist orders and to promptly produce all responsive public records,” said the spokesman, Josh Ellis, in an email.

Several faculty leaders at different institutions within the system declined comment on the situation. One would only say that it doesn’t feel “wise or productive to weigh in on the ‘palace intrigue’ taking place at the Board of Governors.”

The academic core at ECU is still working “like clockwork,” said Crystal Chambers, associate professor of educational leadership and higher education and vice chair of the faculty at East Carolina University. Gerlach resigned when the video came out -- no matter how it was released -- and the university now has a new chancellor in place, she said.

She also called for more input from faculty members in decisions about who is leading universities.

“Amid the totality of it all, it kind of speaks to the need for leadership at the Board of Governors level, especially, to listen to the people who are being governed,” Chambers said. “We know our institutions inside and out, and if you really value our voice, actually listen to what we say. We’re the people who live this every day.”

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