Ken Hare In Depth: ASU hires high profile (and costly) lawyer to defend probe

Published: May. 17, 2013 at 5:54 PM CDT
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MONTGOMERY, AL (WSFA) - Alabama State University has called on one of theultimate big legal guns to provide advice in the ongoing probe of theuniversity -- retired federal judge U.W. Clemon of Birmingham.

Or should that previous paragraph have read "ongoingprobes"?

Readers will recall that when the ASU board of trusteeswas attempting to oust Dr. Joseph Silver as president of the university lastyear, Silver said it was as a result of his attempting to ask questions abouthow money and contracts were being handled at the public university.

Thanks to a lucrative buyout -- $685,000 -- Silver wentaway. But Gov. Robert Bentley pushed for a forensic audit of ASU to answer someof the same questions that Silver said he had attempted to ask. That forensicaudit has been ongoing for several months now.

But recently, ASU's interim president, Dr. WilliamHarris, raised the possibility that there could be more than one probe ongoingat ASU.

In discussing the board's approval of the hiring of legalcounsel for ASU administrators, Harris said: "I recommend that the board grant authorities andresponsibilities to the president to appoint counsel for university officialsin their personal and official positions regarding the agreed upon proceduresof the forensic audit and certain other investigations."

Notethe phrase "other investigations."

Harriswent on to refer to "those two operations out there."

Evenbefore the ASU board meeting on May 10, rumors had been flying that Clemonand former ASU board member Donald Watkins had been retained as attorneys forASU.

Whenquestions were emailed to ASU officials about the "otherinvestigations" and specifics of the university's new legalrepresentation, the answer to one question became immediately clear -- theresponse came from Clemon himself.

Clemon said that he and his firmof White, Arnold & Dowd in Birmingham had been retained "to provide advice and counsel inconnection with the forensic audit and related matters."

As for the "otherinvestigations," Clemon's response was less clear.  He wrote that the "two operations"referred to by President Harris "are the forensic audit, and any ancillarylegal matters arising from the audit which may adversely impact the mission andcorporate interests of ASU."

Specifically asked ifthere was a federal probe of ASU, Clemon responded: "I respectfullyrefer you to the United States Attorney for the Middle District of Alabama forthe appropriate response to this question."

Specificallyasked if there was a state probe beyond the audit of ASU, the retired judgewrote: "I respectfully refer you to the District Attorney of MontgomeryCounty and the Attorney General of the State of Alabama for the appropriateresponse to this question."

Predictably, federal andstate prosecutors followed their usual procedures and declined to comment onthe possibility of ongoing investigations.

As for whether Watkins (a former boardmember, the son of a former ASU president, and a former Montgomery City Councilmember) had been retained, Clemon wrote that "ASU has not hired orplaced Donald Watkins under contract. Rather, Mr. Watkins – whose fatherfaithfully served as president of ASU for nearly two decades -- volunteers to ASUhis valuable legal services and substantial expertise in forensic audits. Thesevoluntary contributions are provided by him on an 'as needed' basis."

Clemon responded in a followupemail that he was being paid  "$375 per hour for my services to ASU."

" There was no 'up front' retainage paid to me," hewrote. "My usual corporate rate varies between $450-500 hourly."

An aside: Beforeretiring as a newspaper editorial page editor, I was critical in an editorialof ASU's high legal fees when compared to other public universities of similarsize. To its credit, ASU has whittled down considerably those annual legal fees-- which I do not believe include in-house lawyers. A recent report by StateExaminers of Public Accounts shows that ASU's outside legal fees had declinedfrom $957,288 in fiscal 2009-2010 to $417,523 in fiscal 2011-2012. But withASU's ongoing legal problems with Silver and the forensic audit, as well as ahighly publicized sexual harassment case now under appeal, it would not besurprising to see those numbers rising when figures are available for thecurrent fiscal year.

As for the publicfinally getting a look at the results of that forensic audit, it could be awhile.

Shortly after he called for the audit in December, Gov. Bentleyestimated it would take about six months to complete. But that estimate is nolonger in play.

This week a spokeswoman for the governor told me that that the "forensic audit isongoing and at this point there is no timeline for completion."

PressSecretary Jennifer Ardis said that the governor wants it "to becompleted as soon as possible" but also wants to ensure that it isthorough.

Askedif the possibility that it possibly could take longer than the six-monthestimate meant that auditors were finding issues that needed to be followed up,she said only: "I cannot comment on any of the process of theinvestigation."

So it could be a while longer beforethat forensic audit results are made public. And as for learning about those"ancillary legalmatters arising from the audit," all we can advise the public is to stay tuned.


Ken Hare was a longtime Alabama newspaper editorialwriter and editorial page editor who now writes a regular column for WSFA's website. Email him at

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