The WynnBlog originally reported, August 28, 2008, on the wrongful termination lawsuit filed against RSU by former Bit by Bit director Jana Walstrom, in this post.

I did a follow-up post January 23, 2009, in this post.

With the recent mess at Bit by Bit due to Dr. Ray Brown’s termination of interim director Trista Milliman, I thought the Walstrom case worth revisiting. I’m glad I did, because Walstrom’s case is very much still alive.

Here’s the quick and dirty background. Walstrom filed her suit against RSU, its regents, and Dr. Larry Minks and Ms. Linda Andrews, two RSU administrators (at that time; Minks has departed, Andrews remains) in Rogers County District Court, which is the state court having jurisdiction over RSU, which is located in Claremore, Rogers County, Oklahoma. Walstrom alleged some very serious acts on the part of RSU, through Minks and Andrews, which, if true, should scare anyone from working for RSU ever again. There were also several similarities between Walstrom’s allegations and those made in other suits against RSU and its agents (yes, there have been several).

Back to Walstrom. RSU’s attorneys pulled a maneuver whereby they moved to have the case removed from the state court to federal court. The Rogers County courts have delivered some fairly harsh decisions against RSU in the past, and it’s likely that RSU attorneys view the federal court friendlier to their client. There’s another reason as well. It’s the Eleventh Amendment to the U.S. Constitution, which states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

For all practical purposes, the courts interpret this to mean that U.S. states cannot be sued in federal court, for which the term is “sovereign immunity.” This is not absolute, and there are a couple of exceptions. One of these exceptions is if a state gives permission to be sued in federal court, the federal court then has jurisdiction to hear the case. In the Walstrom case, RSU’s attorneys filed a motion to move the case from Rogers County court to the federal courts, the United States Court for the Northern District of Oklahoma, based in Tulsa. Once in federal court, RSU’s attorneys then moved to dismiss the case because, they allege, RSU (an arm of the State of Oklahoma) is immune from suits in federal court because of the Eleventh Amendment. Pretty snazzy, huh? Move to go to federal court, then move to dismiss because you’re immune to federal court, and call it a day.

To me, as a non-attorney, is seems preposterous that a party could make the motion to move a case to federal court then claim it hadn’t given permission to be sued in federal court. But the argument has been successful before, which, one assumes, is why it was tried again. But this time, the court reached the same conclusion I did, Judge Eagan ruling that RSU’s motion to move the case to federal court granted Walstrom permission to sue it in federal court, stating:

Plaintiff argues, and the Court agrees, that removal of a case to federal court constitutes an intentional waiver of the RSU’s defense of sovereign immunity. … Therefore, RSU has waived its Eleventh Amendment immunity and it is not immune to plaintiff’s wrongful termination claim.

Win one for Walstrom.

Because the case was not dismissed, the federal court went on to Walstrom’s claim that her Constitutional rights were violated by Dr. Minks and Ms. Andrews, who were acting under the color of state law, which is referred to as a §1983 claim (after the numbered section in which it appears in the statutes). There is a precise methodology for stating a claim under §1983. In the Walstrom case, the federal court ruled that Walstrom had failed to state a claim, meaning that she did not adequately meet the requirements of a 5-prong test in her allegations. The court’s opinion is that the Walstrom didn’t satisfactorily satisfy the 5-prong test, so her §1983 claim was dismissed.

Win one for RSU.

Since the §1983 claim was the only federal issue of Walstrom’s case, the court then ruled that state court is the best place for the remaining issues, all related to Oklahoma state law, to be decided, thus the federal court declined to exercise jurisdiction over what remains of the case and remanded it back to Rogers Country District Court for further action. So, Walstrom’s case is back in Judge Post’s Claremore court.

Win one for ??? Only time will tell. Rogers County judges have been fairly good at getting to the truth and issuing good opinions. We’ll see if that remains the case. I have every confidence Judge Post will do well. According to OSCN, the parties have agreed on a scheduling order. I’ll try to get by the courthouse this week and see what else has been filed recently.

And that’s all I have to say about that (for now). If you’d like to see the court document I have referenced for this post, it is here. Feel free to comment if you feel I have made an error in my analysis. I’ll be glad to correct mistakes.

And special thanks to the WynnBlog friend who helped me get the court document. You know who you are.

I know many of you are very interested in this story, so I’m doing my best to keep information updated. If it’s your first visit, scroll down to the original post first. Then work your way up through the updates.

[UPDATE 5: Sept. 9, 2009 @11:52 PM]

Okay, kids, here’s the letter that started it all. This is Trista Milliman’s letter to Dr. Ray Brown asking for part-time help for the Bit by Bit program one last time and stating that if it was not forthcoming, he could consider the letter her notice. Of course, we all know she wasn’t even allowed the courtesy of serving out her two-week notice before Dr. Ray “The Terminator” Brown relieved her of her duties. Read this letter and tell me who has Bit by Bit and its students’ best interests—and safety—at heart.

[UPDATE 4: Sept. 7, 2009 @ 8:45 PM]

Sunday’s Claremore Progress carried a guest column in which RSU president Dr. Larry Rice answered none of the questions I and many others are asking, while extolling the virtues of Bit by Bit. There’s no question Bit by Bit is an excellent program, and it has become such due to the diligent efforts of under-appreciated staff, selfless volunteers, and generous benefactors. Any success has been, largely, in spite of RSU administration involvement. So then, Dr. Rice, if it’s such a great program, why are you allowing your underlings to destroy it? Or maybe a more appropriate question, who is really in charge on College Hill?

[UPDATE 3: Sept. 4, 2009 @ 3:51 PM]

Several of things have happened today. I am still receiving communiques from Bit by Bit volunteers who have had it with RSU’s management of the program. If all of them are contacting the university, they are a force to be reckoned with.

Second, Brent Ortolani, director of public relations at RSU, actually replied to my email. In my email I asked:

Does the university have any comment on the termination of Trista Milliman as interim director of the Bit by Bit program Monday? Has the university located a new director yet? What is the university’s response to news of a Bit by Bit volunteer backlash over Milliman’s termination? What steps is [sic] the university taking to cover all the Bit by Bit classes starting Sept. 15 with such a small paid staff and volunteers pulling out? What are the current Bit by Bit enrollment and staffing numbers?

He responded by sending me a Microsoft Word document attached to an email, which I have converted to PDF for you. Here it is.

In short, he uses the typical we-don’t-reply-on-personnel-issues catch all to avoid that question. He also provides the typical we’ve-got-everything-under-control response. Interestingly enough, he did not mention postponing classes as a possibility, as Dr. Brown did in my previous update (see below). Probably the most telling of Ortolani’s response, though, is the question he did not answer, specifically: “What is the university’s response to news of a Bit by Bit volunteer backlash over Milliman’s termination?” His non-answer indicates the university seems to expect that program volunteers will eventually shut up and toe the line. He states, “The university anticipates a similar number of volunteers this year,” the number of which he earlier fixed at approximately 75. The information I am receiving makes it appear that that would be highly unlikely given the current circumstances. What say you?

Lastly, the lawsuit by former Bit by Bit director Jana Walstrom has not been settled. More info on that will show up as a new post here.

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[UPDATE 2: Sept. 4, 2009 @9:55 AM]

I have permission to share a reply Dr. Ray Brown made to an email inquiry.

Thank you for your email regarding the Bit by Bit program. The university began the Bit by Bit program approximately 11 years ago and has served children/clients continuously since then. A lot of great things have happened at Bit by Bit over the years. Many students have shown remarkable progress. I want to reassure you that the program will continue in spite of temporary setbacks. The search for the director position is drawing to a close. Interviews are currently underway and the director should be hired very soon. A search has started for a full-time instructor. We fully intend to have Bit by Bit staffed with certified and experienced instructors. We have several NARHA certified instructors who have applied to the Bit by Bit program. In the event that sufficient qualified instructors are not employed, the university will delay the start of classes. At this time, I do not believe that will be necessary. The resignation of the Interim Director was unfortunate and poorly timed. Nevertheless, the university is committed to continuing the same high quality program that has been offered for the last decade. Thank you for expressing your concern and giving me an opportunity to explain our plans.
Ray Brown

Some observations and questions:

1. Milliman made the university aware she would resign IF more staff wasn’t hired. If, as Dr. Brown states, they are close to filling these positions, Milliman would not have needed to resign.
2. As it has been reported, Milliman did not resign. She submitted her letter last week asking again for more staff (and stating she would resign if they denied her request), and Brown terminated her this Monday.
3. As for the timing, all accounts lay that squarely in the university’s lap, specifically that of Dr. Ray Brown.
4. What does the university consider “sufficient qualified instructors”? The underlying issue here is requiring too much of too few. I am calling for RSU to define and state for public judgment what it considers the criteria for a “qualified instructor” and what it means by “sufficient,” and how it reached that determination. Bottom line, share with the world what RSU considers a safe and proper ratio of students to “qualified instructors.”

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[UPDATE 1: Sept. 3, 2009 @ 7: 11 PM]

The Claremore Progress today covered this very issue. You can see its report here.

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[ORIGINAL POST BELOW]

For some time now, the WynnBlog has received occasional inquiries regarding the Bit by Bit therapeutic equine program that runs under the auspices of Rogers State University. As the resident RSU critic and watchdog (see previous reports here), people come to me. I’ve never really had any information about the program and its travails. Until this week.

Bit by Bit is an program for young people with developmental challenges. According to the Bit by Bit page on RSU’s website:

The documented benefits of therapeutic horseback riding are great. They can be seen in the following:

• speech
• movement
• balance
• strength
• emotional health
• motivation

Therapeutic horseback riding is a growing resource for health, behavioral and educational specialists.

Students who have lost the ability to move in a three-dimensional way, make great progress through the experience of riding and reintegrating the use of:

• muscles
• mental processing
• motor planning and strength
• moving closer to independent living goals

Students termed “at risk” benefit from the emotional bond of handling the horse, performing tasks of responsible care-giving as well as the accomplishment of horsemanship skills, that carry over to the home, family relationships, self-esteem and school activities.

Bit by Bit has been the site of first time speech motivated by the desire to communicate with the horse and we often hear reports of lessened falling due to improved balance.

The Bit by Bit program has been a huge success. Operating for over a decade, the program has grown to serve approximately 90 young persons. Its success is due to lots of caring volunteers who give freely of their time, energy, money, and livestock. Dr. Ray Brown, the RSU exec immediately responsible for Bit by Bit, acknowledged as much in a letter following the departure of Bit by Bit director Velinda Baker, writing, in part:

“Our volunteers are critical to the successful operation of the Bit by Bit program…. Your support is invaluable…. We are dedicated to having the best possible therapeutic riding program and we could not accomplish that goal without your help.”

It seems RSU may, then, have trouble accomplishing the goal of beginning Bit by Bit classes on schedule September 15.

Monday, interim director of Bit by Bit, Trista Milliman, was terminated by Dr. Brown. This following a letter she sent last week asking for more part time instructors to be hired to serve the student load, which has nearly doubled while the number of paid staff positions has remained unchanged (with some unfilled at times) thus making a net reduction in the ratio of trained instructors to students, which some within the program have considered a safety concern. Brown, who draws a salary of nearly $11,000 per month as RSU’s Vice President for Economic and Community Development, reportedly balked at the notion of hiring more part-time instructors at $13 per hour for three nights a week. Milliman’s letter further stated that if the university again refused to approve additional help for upcoming classes, RSU could consider the letter her two-weeks’ notice. Not content to let Milliman to serve out the notice, Dr. Brown fired her Monday, after which she was—all together now—escorted to her car. The RSU pattern has changed little.

Problematic as Milliman’s termination just two weeks before classes is, it’s just the most recent trouble for the Bit by Bit program. Previous Bit by Bit director, Jana Walstom, sued RSU for wrongful termination on August 21, 2008. As part of her petition, Walstrom alleged, among other things, that, after she questioned what she suspected was misappropriation of certain funds, she was terminated. Specifically, Walstrom alleges she contacted Dr. Larry Minks because $6,500.00 of funds budgeted for the Bit by Bit program were spent by another non-Bit by Bit-related department. She also alleged she signed a statement that she was resigning under duress after being threatened by RSU administrators that she would not be paid for her services if she did not. And there was, of course, a confidentiality agreement as well (read my previous post here). The suit was removed from Rogers County District Court to federal court and I haven’t been following its progress. I was recently told it was settled out of court. When I have time I’ll check. If it was settled, who’ll give me odds it contained a confidentiality agreement?

I have been told the Bit by Bit program is supported in large part by grants, and I am working to learn just how the program’s finances work. But I have been told that, as Walstrom claimed in her lawsuit, there appears to be some disconnect between grant funds received and actual purchases made for the program. I have no way to know yet whether those claims are true, but I will be researching it. If I were a grantor to the program, I would certainly request documentation from the university proving granted funds had been used in accordance with the grant proposal, but grantors should do that as a matter of course.

I said above that RSU may have problems beginning Bit by Bit classes September 15. Why? Bit by Bit is a program dependent on volunteers, and the volunteers are not happy. Thus, Bit by Bit may lack the manpower and resources to serve the special needs students who so desperately need it.  Bit by Bit volunteers have united behind Milliman and are vocally challenging Brown’s termination of her. Milliman was a Bit by Bit volunteer from late 2007. She is certified by the North American Riding for the Handicapped Association (NARHA), and she was asked to serve as interim director when Velinda Baker departed. Baker was made director after Walstrom’s resignation/termination, and Walstrom had taken over from Linda Baron, who began the program on RSU’s campus, departed. Milliman is regarded by many volunteers to be a superbly professional and competent director who works hard, sometimes from 7 AM to 9 PM, to make sure the kids of Bit by Bit are served. RSU’s recent actions have caused the volunteers to band together to to seek an accounting of the entire program, some demanding the program be removed from under the auspices of RSU altogether.

What bargaining chip do the volunteers have? Themselves. Brown has acknowledged that volunteers are critical to Bit by Bit’s success. If they unite and refuse en masse to provide their services (and refuse the use of their horses, as some have), the program has very little chance of success, and kids who really need to be served will not be. I have been sharply critical of RSU’s actions in the past. I believe the repeated litigation with similar details, not to mention the U.S. Department of Education’s scathing report on RSU’s federal grant programs, indicate there are serious issues on College Hill. I had the highest of hopes that President Rice, who many have told me is a good and decent man, would seek to get to the bottom of these issues. Truthfully, I have been underwhelmed by his pursuit of reform. If there ever was a time for him to step in and rein back his underlings, it is now. Very many special young students will be harmed in a way terminated employees never could be if RSU does not reverse course, adequately staff Bit by Bit, and provide open and transparent accounting of the entire program. And some apologies are in order, too. I wish I could be hopeful, but if the past is truly an indication of the future, I won’t hold my breath.

Oh, and what does the university have to say about all this? Apparently nothing. I emailed RSU’s head of communications, Brent Ortolani, today asking some questions about the situation and for RSU’s statement. Though I received an email read receipt stating Brent Ortolani read my email at 09:56:54 this morning, he has not responded, which is not surprising, as he never replies to my inquiries. My email to Ortolani was CC:ed to President Rice. I have received no reply from him either.

You are welcome to comment here, but if you want to see things change, you should contact the university. I’ll make it easy for you:

Rogers State University
1701 W. Will Rogers Blvd.
Claremore, OK 74017
800-256-7511
918-341-7510

Dr. Larry Rice, President of RSU
lrice@rsu.edu
(918) 343-7613

Dr. Ray Brown, Vice President for Economic and Community Development
rbrown@rsu.edu
(918) 343-7622

Oh, and if you call the president’s office and Sharon Kern answers, tell her her old pal Tyson Wynn says hi!

A little birdie tells me strange things are afoot at RSU this week. Post details in the comments if you have them.

I’ll share more as I am able to confirm.

RSU President Dr. Larry Rice today made his State of the University address. I was in attendance, though not warmly greeted.

Let’s say it this way: I’m 6′4″ tall and even the fake weight on my driver’s license is probably twice most normal men’s. I can’t really blend into a crowd; I don’t try. Additionally, my understanding was that the State of the University presentation was a public event. So, I went.

At just before 9 a.m., I walked into the Will Rogers Auditorium through the front entrance and took a center-section seat near the front of the auditorium. I hadn’t been there long when I was approached by my old friend Sharon Kern (you may remember her from my account of trying to serve legal papers on several RSU staff members (Kern is mentioned on pages 35ff on the PDF)). In her usual warm, friendly way, she walks up and says, “I’m Sharon Kern. Who are you?” with her hallmark passive-aggressive flair. I told her who I was, and she asked what I was doing there. I responded that I believed it was a public event. She informed me that it was for faculty and staff. I asked her if she was asking me to leave. Apparently, her authority ends with accosting members of the community at public gatherings because she said she’d have to go ask about that and let me know. She went and reported on me to the administrators and they huddled. It took them a while, but they must have decided I posed a threat somewhat less than the typical, rabid secretary because the presentation, replete with Brent Ortolani’s spellbinding circa 1997 PowerPoint slides (he even used the “Crawl In” text effect), finally started (about 20 minutes late) without any further contact.

I don’t have much to say about the report. It was the typical “how great we’re doing” presentation. In the “Challenges” section, there was no mention of the huge issues the university is facing with its federal grant programs. And, out of respect for Dr. Rice, I chose not to pose the question during the question and answer period. I hold out hope that he will answer those questions and make the needed changes at RSU.

For your listening pleasure, I provide an audio copy of the presentation on the WynnCast Blog. Too bad I hadn’t had time to get my recorder out when Sharon came to say hi.