Records referenced by OCR in January 23, 2013 letter

Christopher Philippo filed this request with the Department of Education, Office of Civil Rights of the United States of America.
Tracking # 14-00448-F
Status
Completed

Communications

From: Christopher Philippo

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

* The record or records referred to within a letter from the U.S. Department of Education Office for Civil Rights (OCR) to Christopher K. Philippo dated January 23, 2013 concerning Case No. 02-12-2157 University at Albany, State University of New York wherein Christopher K. Philippo alleged to the U.S. Department of Education Office of Civil Rights that the University at Albany him sent a "cease and desist order" (as opposed to a "cease and desist letter") on August 3, 2012.

* The record or records referred to within a letter from the U.S. Department of Education Office for Civil Rights (OCR) to Christopher K. Philippo dated January 23, 2013 concerning Case No. 02-12-2157 University at Albany, State University of New York wherein Christopher K. Philippo sent requests to the "Social Sciences Department" (no requests to a "Social Sciences Department" were included in the response to the FOIA request https://www.muckrock.com/foi/united-states-of-america-10/us-dept-of-ed-ualbany-communication-re-ocr-case-no-02-12-2157-4876/ )

* The "responsive documents and information produced by the University" referred to within a letter from the U.S. Department of Education Office for Civil Rights (OCR) to Christopher K. Philippo dated January 23, 2013 concerning Case No. 02-12-2157 University at Albany, State University of New York wherein the University at Albany responded to a June 4, 2012 9:13 AM FOIL request for "the written University at Albany policy that reports of retaliation should NOT be made to the Director of Conflict Resolution and Civic Responsibility but to some other office" (no "responsive documents and information produced by the University" to those FOIL requests were included in the response to the FOIA request https://www.muckrock.com/foi/united-states-of-america-10/us-dept-of-ed-ualbany-communication-re-ocr-case-no-02-12-2157-4876/ )

In a letter from OCR to Christopher K. Philippo dated January 23, 2013 concerning Case No. 02-12-2157 University at Albany, State University of New York, OCR wrote in relevant part "You alleged that the University's Director of the Office of Conflict Resolution & Civic Responsibility [Clarence L. McNeill] retaliated against you for filing complaints of sexual harassment against a communications [sic] professor [Michael W. Barberich] (the Professor) during the fall semester 2011, by issuing you a cease and desist order on August 3, 2012. [...] The complainant alleged that the Director retaliated against him for filing complaints of sexual harassment against the Professor during the fall semester 2011, by issuing him a cease and desist order on August 3, 2012. OCR determined that the complainant engaged in protected activity by filing complaints of sexual harassment against the Professor during the fall semester 2011. OCR further determined that the Director was aware of this protected activity. OCR determined that the Director did not issue the complainant a cease and desist order, as the complainant alleged. [...] If you have any questions about OCR's determination or wish to discuss it further, please contact Richard Anderson, Compliance Team Investigator [...] or Gary Kiang, Senior Attorney [...] Sincerely, [signed] Erin Gimbel Compliance Team Leader". The determination stated a number of other problematic things, including that Christopher K. Philippo submitted requests to the "Social Sciences Department." In reality, there is no such department. OCR alleged that "The University furnished OCR with copies of the complainant's FOIA and FOIL requests, and copies of the responsive documents and information produced by the University."

Relevant to the FOIL requests, one was made on June 4, 2012 9:13 AM for "the written University at Albany policy that reports of retaliation should NOT be made to the Director of Conflict Resolution and Civic Responsibility but to some other office (see below quotes). [...]
"Retaliation is an intentional act taken against an individual who initiates any sexual misconduct complaint, including stalking or intimate partner violence, pursues legal recourse for such a complaint, or participates in any manner in the investigation of such a report. Any act of retaliation is prohibited and is subject to judicial referral. Information on how to report retaliation is found in Appendix J. [bold emphasis in original]
http://www.albany.edu/studentconduct/prohibited_conduct.shtml

"Any threat of retaliation or other attempts to prevent the reporting of sexual misconduct will be prohibited and is subject to disciplinary action. Reports of retaliation should be made to the Director of Conflict Resolution and Civic Responsibility (518-442-­5501) and/or the Associate Director of Residential Life/Quad Supervisor (518-442­-5875) who will assist in filing a complaint for university disciplinary action. [...]

"Definition: Retaliation is an intentional act taken against an individual who initiates any sexual misconduct complaint, including stalking or intimate partner violence, pursues legal recourse for such a complaint, or participates in any manner in the investigation of such a report. Any act of retaliation is prohibited and is subject to judicial referral. [bold emphasis in original]

" http://www.albany.edu/studentconduct/appendix-j.shtml

"'That would not be reported to me.'- Director of Conflict Resolution and Civic Responsibility Clarence L. McNeill, "RE: retaliation?" December 9, 2011 12:44:30 PM EST. E-mail from Clarence L. McNeill to Chris K. Philippo and cc'd by Clarence L. McNeill to Susan M. Philippo, RN (retired)."

SUNY Albany Records Access Officer Lisa A. Taylor did not send any records responsive to that June 4, 2012 9:13 AM FOIL request for "the written University at Albany policy that reports of retaliation should NOT be made to the Director of Conflict Resolution and Civic Responsibility but to some other office", nor did she deny that request. A FERPA/NY Personal Privacy Protection Law request was sent on July 18, 2012 9:20 AM; it was not even acknowledged. An August 2, 2012 8:42 PM FOIL request for several SUNY Oaths of Office likewise was not even acknowledged, though the law requires it. PUB. OFF. LAW § 89 (3) (a), in relevant part: "Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section." There are problems with respect to other FOIL requests made as well. E.g. the University at Albany Police, in response to a FOIL request, sent two police reports and claimed that they had nothing else, paper or electronic, concerning Christopher K. Philippo; the police did not send any of the cease and desist orders that Clarence L. McNeill and John M. Murphy have claimed that the Police have and are enforcing.

A number of questions were sent to Ryan Milligan, Richard Anderson, and Gary Kiang on February 5, 2013 1:08 PM in the e-mail "OCR Case No. 02-12-2157 [SUNY at Albany University]: no "cease and desist order"?" concerning OCR's claim that Christopher K. Philippo alleged that on August 3, 2012 Clarence L. McNeill issued a "cease and desist order" on August 3, 2012 https://drive.google.com/file/d/0B7Mt-S77wZKfZGh0UVFvY3FTakU/edit?usp=sharing . OCR would not answer those e-mailed questions. On December 23, 2013 Richard Anderson and Gary Kiang finally agreed to have a phone conference to answer questions. Mr. Kiang did not have the determination with him for the phone conference which was scheduled to answer questions about that very determination and he needed Richard Anderson to read it over the phone to him. An attempt at transcribing a relevant portion of the conference follows:

CKP: "I don't see where I ever alleged to OCR that the August 3, 2012 e-mail and then the subsequent letter that had that date was a 'cease and desist order.' I thought I had referred to it as a cease and desist *letter*.
GK: OK. And the distinction in that regard: what effect do you believe that has?
CKP: As I understand it, anybody can issue a cease and desist letter, like *I* can, but only certain people have the authority to issue a cease and desist order.
GK: Right. And based upon the information that we were given and the information that we shared with you in the case file it appeared that it was a cease and desist letter, not a cease and desist order.
CKP: Correct. [...] In your determination it was stated that I had alleged it was a 'cease and desist order' and then you determined that I had not been sent a 'cease and desist order.' But I had never, that I can see, alleged that it was a 'cease and desist order'. [...]
GK: Well, I believe, and I'd have to look, and I don't have the original complaint in front of me, but I mean if it were alleged within the initial complaint that it was a 'cease and desist order' then we would look at the cease and desist to see whether or not there was an order when it was issued. [...]
CKP: I'm not sure that anybody at a university can issue a 'cease and desist order.'
GK: Right. And in that regard we looked at it as whether or not there was a 'cease and desist letter,' whether or not that letter had the same effect as a 'cease and desist order' or basically in what way, what it asks the university to do. I realize the question that you're asking. We did look at both. The reason why it's phrase as a 'cease and desist order'? If it's phrased that way within your initial complaint, that's the way it's recorded or framed in the notification letter which then goes to our findings.
CKP: Can you send me a copy? Because I just don't see where I referred to it as a 'cease and desist order'. [...]
[RA and GK could not indicate where it had been alleged that it had been referred to as a 'cease and desist order' and would not provide the alleged document(s) wherein it was referred to as such.]
RA: It's not just us when we write the letter. What happens is that the analysis is completed by the case team, and a letter is developed, it's reviewed all the way up the chain of command to see if we've completed, we've reviewed everything, and taken into consideration, and so when the case team, when Gary and I develop that letter and sent it to be reviewed based on the information we had at the time we made that determination and apparently the staff above us who reviewed it felt that we were accurate.

The original complaint had been received by OCR prior to August 3, 2012; the original complaint could not possibly have alleged that the August 3, 2012 cease and desist letter was a 'cease and desist letter.' J. Ryan Milligan
Compliance Team Attorney wrote on August 14, 2012 11:52 AM of "OCR’s letter acknowledging receipt of your complaint, dated July 27, 2012", an e-mail that was cc'd to Richard Anderson. A reply to that e-mail sent August 14, 2012 12:46 PM by Christopher K. Philippo to Ryan Milligan and Richard Anderson stated in part, "I had been hesitating about sending the signed Consent Form in large part due to the recent intimidating August 3, 2012 e-mail and intimidating letter I received (a signed copy of the document that had been attached to the e-mail), also dated August 3, 2012 but actually postmarked August 7, 2012. Further retaliation is a concern not just for me, but for my family and friends as well. My mother, in particular, is very distressed about the situation. I don't know to what extent your office can prevent further retaliation, or quickly address it if it does occur" That August 14, 2012 12:46 PM might be the first reference in communications to OCR regarding the August 3, 2012 cease and desist letter; it does not refer to it as a "cease and desist order."

A January 8, 2012 OCR Witness Interview Statement regarding Clarence L. McNeill ("The witness") stated in part: "The witness stated that he sent the December 2011 cease and desist order to the complainant to prevent him from contacting various University staff from the communications [sic] department because he had graduated and left the University." Clarence L. McNeill did not send Christopher K. Philippo a "cease and desist order" in December 2011, and Christopher K. Philippo had not graduated in December 2011 and would not graduate until 2012, and at any rate graduation typically does not automatically preclude communicating with people at the university or provide a rationale for prohibiting such communication. Clarence L. McNeill had claimed, falsely, to Christopher K. Philippo and his mother in the attachment ChrisPhilippo.doc to his e-mail of December 9, 2011 12:44:30 PM subject "RE: retaliation?": "I have been notified that you violated the 'cease and desist' order I imposed on December 6, 2011. [...] As I stated to you yesterday (December 8) your actions have caused me a great deal of concern." Clarence L. McNeill did not send a "'cease and desist' order" or even a cease and desist letter to Christopher K. Philippo on December 6, 2011; Clarence L. McNeill was referring to his e-mail "Good Morning" of December 6, 2011 9:51 AM in which he recommended that Christopher K. Philippo voluntarily refrain communication concerning Michael W. Barberich, just as Christopher K. Philippo had voluntarily chosen (albeit without Mr. McNeill's prompting) not to attend class: "I think your decision to refrain from attending class today is a good one. However, I would like to add that you should refrain from any and all communications with (or about) Prof. Barberich from this moment forward." Mr. McNeill's advice (or "'cease and desist' order", as he subsequently claimed it to be to Christopher K. Philippo and his mother and evidently to OCR) ran contrary to university policy: "Victims shall [...] Be free from unwanted pressure from campus personnel to: [...] Refrain from reporting sexual assaults for any reason, including the fear of unwanted personal publicity." http://www.albany.edu/studentconduct/27173.php The university defines sexual harassment as a form of sexual assault: "Sexual assault is a broad term that includes [...] sexual harassment" http://www.albany.edu/counseling_center/sexualviolence/sexualassault.shtml OCR had determined that Clarence L. McNeill knew that Christopher K. Philippo had engaged in a protected action by reporting Michael W. Barberich's sexual harassment; Clarence L. McNeill's initial advice or as he later claimed it to be, a "'cease and desist' order" to "refrain from any and all communications with (or about) [a professor reported for academic dishonesty, sexual harassment, and retaliation] from this moment forward" is extremely problematic and troubling.

The university at Albany has claimed that the December 9, 2011 e-mail was a "'cease and desist' order". John Murphy in his July 3, 2012 3:48 PM subject “C&D Order” cc’d to Christine Bouchard, Clarence L. McNeill, J. “Frank” Wiley, and presmail@albany.edu stated in part: "Mr. McNeill did in fact issue you a cease and desist order dated December 9, 2011 directing you to have no contact with Professor Barberich and in which he noted a copy to Police Chief Wiley, Professor Barberich and your student file. [...] the letter in question was not sent to Mr. Barberich although there is a clear indication at the bottom which would contradict that assertion. Mr. McNeill communicated to me that [he] simply notified [Dr.] Altaribba and [Mr.] Barberich that [he] had issued the C&D (cease & desist) and that UPD (University Police Department) was notified.' [...] As previously indicated the 'order' is legitimate, valid and enforceable by the University Police Department."

The December 8, 2011 e-mail referred to in the December 9, 2011 e-mail was one in which he'd written in part: "Continued attempts to discredit/disparage Prof. Barberich will only provide him fuel in a civil/criminal arena and make you out to look like you are harassing him (and now possibly Dr. Altarriba. Please take this as a final warning. You need to forget about Prof. Barberich." Attempts to report Michael W. Barberich's academic dishonesty, sexual harassment, and retaliation were not, and should not have been characterized by Mr. McNeill as, attempts to discredit/disparage. Clarence L. McNeill's August 3, 2012 e-mail (which threatened referred back to the December 9, 2011 e-mail (which threatened police action) which referred back to the December 8, 2011 (which threatened civil and criminal litigation for reporting Michael W. Barberich's academic dishonesty, sexual harassment, and retaliation and threatened "You need to forget about Prof. Barberich.").

Regardless of whether OCR accept an appeal of their erroneous January 2012 determination, the agreement between OCR and SUNY http://www.ed.gov/news/press-releases/us-department-education-reaches-agreement-state-university-new-york-address-and- requires that SUNY Albany review the handling of the sexual harassment complaints, possibly including remedies: "each of the individual campuses that OCR visited must reexamine all sexual harassment/violence complaints filed during and since academic year 2011-2012. SUNY must report to OCR the actions it will take to correct problems identified in the manner in which these four campuses handled those complaints, which may include providing individual remedies for students." That Clarence L. McNeill, the supposed head of the SUNY-wide judicial administrators group as his office claims ( https://web.archive.org/web/20131219193931/http://www.albany.edu/staff.php ), sent threats to a student (later alumnus) and his mother when Clarence L. McNeill knew the student had engaged in protected activity is clearly problematic and needs to be addressed ASAP.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Christopher Philippo

From: ED FOIA Manager

[cid:image002.jpg@01CF0D33.135BCBF0]UNITED STATES DEPARTMENT OF EDUCATION

FOIA REQUEST ACKNOWLEDGEMENT

FOIA Tracking Number: 14-00448-F
E-mail Address: requests@muckrock.com
Name of Requester: Christopher Philippo

Date of Request: January 8, 2014
Date Request Received: January 8, 2014

Your request (below) has been forwarded to the appropriate office within the Department to search for responsive documents. If you have any questions regarding the status of your request, please contact the FOIA Requester Service Center at (202) 401–8365 or by e-mail at EDFOIAManager@ed.gov<mailto:EDFOIAManager@ed.gov> (please include the case tracking number).

Thank you.

From: Christopher Philippo

From: "Anderson, Richard"
Subject: Freedom of Information Act Request: 14-0048-F for Case No. 02-12-2157
Date: January 14, 2014 at 10:00:34 AM EST
To: Christopher Philippo
Cc: "Kiang, Gary"

Dear Mr. Philippo:
On January 7, 2014, OCR received your FOIA request for records relating to the complaint you filed against SUNY Albany, Case No. 02-12-2157, (14-0048-F). Please be advised that in response to your previous FOIA request for records relating to Case No. 02-12-2157 (13-01195-F), OCR provided you with a copy of all data submitted by the University, and that is the data OCR relied on in its determination. If you would like, OCR can provide you a copy of any documents that you submitted to OCR, including your initial complaint. If you have any questions, please feel free to contact me.

Richard L. Anderson
Compliance Team Investigator
Office for Civil Rights
U.S. Department of Education
32 Old Slip - 26th Floor
New York, NY 10005
Telephone No. 646-428-3781
Fax No. 646-428-3843

* * *

OCR claimed in its letter dated January 23, 2013 concerning Case No. 02-12-2157 University at Albany, State University of New York that Christopher K. Philippo sent requests to the "Social Sciences Department". No requests made to a "Social Sciences Department" were included in the response to the previous FOIA request for records relating to Case No. 02-12-2157 (13-01195-F); there is no "Social Sciences Department" at the University at Albany.

If there was no basis for making the claim that requests were made to a "Social Sciences Department", no records documenting requests made to a "Social Sciences Department", and OCR is cognizant of the fact that there are no records to support OCR's allegation that there were requests made to a "Social Sciences Department" (which seems to the claim being made in Richard Anderson's above e-mail of January 14, 2014), and since no such department exists, then it is difficult to see how, e.g. N.Y. PEN. LAW § 175.30 has not been violated (and perhaps other laws and federal equivalents): "A person is guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant."

The above concerning requests OCR alleged Christopher K. Philippo made "requests for documents and information pursuant to the Freedom of Information Act (FOIA) and New York State Freedom of Information Law (FOIL)" to a "Social Sciences Department" (when no such department exists, and when OCR indicated requests "pursuant to" the act and law were being referenced it would then presumably automatically exclude requests made to parties, if any, other than those named in the law, i.e. requests *not* made pursuant to the law) is just one example, one false statement in the determination. If the complainant and OCR in agreement that OCR filed a written instrument containing false statements, then apart from the issue of appealing the determination (if it is possible to appeal from a false instrument?) and the new information provided in documents produced at SUNY Albany shared in the FOIA request, how will that problem of a written instrument containing false statements having been filed be addressed?

"In addition, each of the individual campuses that OCR visited must reexamine all sexual harassment/violence complaints filed during and since academic year 2011-2012. SUNY must report to OCR the actions it will take to correct problems identified in the manner in which these four campuses handled those complaints, which may include providing individual remedies for students.
"OCR will closely monitor SUNY’s implementation of the agreement."
http://www.ed.gov/news/press-releases/us-department-education-reaches-agreement-state-university-new-york-address-and-

OCR, since it is closely monitoring that agreement, presumably know that SUNY has not contacted Christopher K. Philippo (and, one suspects, other victims and witnesses all across the state) to indicate what it is planning to do, or is doing, regarding sexual harassment complaints filed during and since academic year 2011-2012. Also relevant to that:

From: Christopher Philippo [...]
Subject: Re: UAlbany Concerns raised in October 12th e-mail
Date: November 5, 2012 at 10:03:44 AM EST
To: "Ellermann, Marti" [...], "Abbruzzese-Werling, Nedra" [...]
Cc: Richard Anderson [...], "Kiang, Gary" [...]

Deputy General Counsel Ellerman, to whom are you addressing your comment about the need to stop responding?

I've cc'd the U.S. Department of Education's Office of Civil Rights; are you unaware that they're involved - did George M. Philip not inform you?

Christopher K. Philippo

On Nov 5, 2012, at 9:56 AM, "Ellermann, Marti" <Marti.Ellermann[...]suny.edu> wrote:

["]At some point, need to stop responding.

["]Marti Anne Ellermann
["]Deputy General Counsel
["]Office of General Counsel
["]State University of New York
["]SUNY Plaza
["]Albany, New York 12246
["]marti.ellermann[...]suny.edu
["]518-320-1306["]

[""]From: Abbruzzese-Werling, Nedra
[""]Sent: Friday, November 02, 2012 5:27 PM
[""]To: [Christopher K. Philippo]
[""]Cc: Thayer, Janet; Reilly, John H
[""]Subject: UAlbany Concerns raised in October 12th e-mail

[""]Dear Mr. Philippo,

[""]I am in receipt of both of your e-mails from Friday, October 12th. I read over each of your concerns, and have brought them to the attention of the appropriate University at Albany administrators. Those administrators have, and will continue to review each one of your concerns in a thorough manner. They will make any necessary corrections to the website that are in order, and will also follow up on the other concerns you raised in your e-mails and investigate as appropriate.

[""]Thank you,
[""]Nedra

[...]
[""]Nedra Abbruzzese-Werling
[""]Compliance Administrator and Special Assistant to the
[""]Senior Vice Chancellor and General Counsel
[""]The State University of New York
[""]State University Plaza - Albany, New York 12246
[""]Tel: 518.320.1400
[""]Be a part of Generation SUNY: Facebook - Twitter - YouTube[""]

* * *

Concerns raised in the e-mails "possible Clery Act violations: Sexual Offender Registry, Campus Security Authorities, &c." October 12, 2012 at 2:59:09 PM EDT and "possible Clery Act violations: Sexual Offender Registry, Campus Security Authorities, &c. 2" October 12, 2012 at 3:18:49 PM EDT concerned the mismanagement of the sexual offender registry by the SUNY Albany Police, conflicting information about who the Campus Security Authorities under the Clery Act are, Clarence L. McNeill's fraudulent and intimidating December 9, 2011 "'cease and desist' order" following academic dishonesty, sexual harassment, and retaliation having been reported to him, and Clarence L. McNeill's August 3, 2012 e-mail and letter that included the threat: "Effective immediately, you are hereby notified that you are to cease and desist all contact with any office, department, unit or employee at the University other than me. As of this date, the University has designated me as your sole contact for all written and oral communication with the University, including, but not limited to, telephone calls and messages, emails, and mailed and faxed correspondence. I will determine when and if your communications will be addressed by the University. [...] This decision may only be reconsidered by me as the agent of the President of the University. If you continue to contact others at the University, the University may consider your actions to constitute harassment, and consult with local authorities about the University’s options to protect its interests. Thank you." One would have expected Ms. Ellermann and Ms. Abbruzzese-Werling to express concern about such things, not to put people in charge of investigating themselves or suggesting that no response be made at all. With SUNY's (particularly SUNY Albany's) long history of inaccuracies and noncompliance with the Clery Act (e.g. as seen in http://osc.state.ny.us/audits/allaudits/093010/09f46.htm ), the investigation and subsequent agreement between OCR and SUNY concerning the handling of allegations of sexual harassment and sexual violence (SUNY Albany being one of four campuses on which OCR particularly concentrated) the response SUNY system administration gave to someone turning to them for help concerning ongoing retaliation for having reported sexual harassment and retaliation is especially problematic. Granted, Nancy Zimpher, William Howard, H. Carl McCall, and John B. King, Jr., among others, did not even respond (perhaps on Ms. Ellermann's suggestion) to the complainant at all when they were turned to for help more than once.

From: Christopher Philippo to William Howard and Nancy Zimpher, subject "'FOIL (Compliance with Freedom of Information Law)': chancellor 'responsible for insuring compliance'", November 9, 2012 at 3:13:18 PM EST:

Dear Senior Vice Chancellor, General Counsel and Secretary Howard and Chancellor Zimpher,

I could use your help in understanding SUNY Deputy General Counsel Marti Anne Ellermann's e-mails of November 5, 2012 9:57 AM and 10:05 AM, and SUNY Compliance Administrator and Special Assistant to the Senior Vice Chancellor and General Counsel Nedra Abbruzzese-Werling's e-mails of November 2, 2012 5:26 PM and November 5, 2012 9:59 AM. Specifically, why they'd acted as they did, why they were writing what they had written, and why they had chosen to address those e-mails to me. I found the content very unnerving and troubling.

At the root of the problems: I'd tried to report a visiting assistant professor for academic dishonesty, sexual harassment, and retaliation. Things only got worse after having reported him, much worse, despite (beyond what I'd reported) the man's lack of tenure, publications, and research. Clarence L. McNeill at the University at Albany wrote me and he also chose to cc my mother (despite my age of thirty-eight at the time) to claim that retaliation is not reported to him (written policy clearly states it is reported to him) and to inform us he'd provided our home address to that visiting assistant professor. McNeill had already written me that he'd informed the professor I'd reported him.

Clarence L. McNeill subsequently forbade me, in writing, to file records access requests (FERPA, FOIL, PPPL, etc.) with the Records Access Officers, police department, Registrar, etc. at the University at Albany, or to communicate with anyone other than himself there, via any means, for any purpose. He did so after I'd graduated, and gave no expiration date to his prohibitions, nor an opportunity to appeal to anyone other than himself. He claims he is my "sole contact" and the "agent of the President of the University."

Mr. McNeill evidently has the support of George M. Philip, Christine Bouchard, John M. Murphy, J. "Frank" Wiley, John H. Reilly, and Janet M. Thayer, because he cc'd all of them on August 3, 2012. None of them raised any objection that I've seen. Mr. McNeill subsequently sent that prohibition to my mother Susan M. Philippo's home, where I reside, postmarked on the August 7 birthday we both share, and requiring me to sign for it on August 8, the 18th anniversary of my father John Philippo's death, my mother's husband's death.

To move on to another matter I'd tried to raise with SUNY's Compliance Administrator - while there was an edit made to the page recently to remove the tally of sex offenders at the more recent of the University at Albany's two different Sexual Offender Registries, the copyright date at http://police.albany.edu/SOR2.shtml is still 2009. It would be far better to have a "last updated" date along with the name of the person who updated it; even grocery store bathrooms often have that kind of information regarding when it was last cleaned and by whom. I still question whether everyone listed is still at the university, and whether there's anyone missing from the list who's now at the university; the date of 2009 (1,095 days ago, roughly) does not inspire much confidence. http://webcache.googleusercontent.com/search?q=cache:AsbS4v24qqAJ:police.albany.edu/SOR2.shtml

That there had been a second, older registry still online until recently http://webcache.googleusercontent.com/search?q=cache:qKwf93LD3LYJ:police.albany.edu/2ColPage.asp%3FPageSName%3DSOR2 (seeming to date from around 2007 or 2008) does not inspire much confidence regarding compliance either. UPD's Annual Security Report with John M. Murphy acting as Clery Compliance Officer for it indicated that changes regarding sex offenders are supposed to be reported within ten days. That Sexual Offender Registry had seemingly not been updated in perhaps 1,460 days.

I could have simply contacted UPD directly about the issues with their two different, outdated, error-prone Sexual Offender Registries, but since Clarence L. McNeill had prohibited me to do so, thus I could not. I had to try writing others about it, to see if they could have it addressed. Prior to that prohibition, the entire command staff chose to ignore the things I wrote them, which seems to be in violation of the SUNY Police Manual. As David Schindler resigned recently, who's left to report that to, when Ms. Bouchard and Mr. Philip have shown no real concern about anything I'd written them, and indeed they had been cc'd on Mr. McNeill's e-mail prohibiting me to communicate with UPD, prohibiting me to communicate with Ms. Bouchard, Mr. Philip, etc. Besides, with over sixty members, UPD ought to have found one member with a spare minute or two over the past 3-5 years to maintain at least one of the two different registries correctly in order to comply with federal law. At this point I wouldn't feel good about (or safe about) communicating with any member of UPD.

When I was still there, some women who worked at the University at Albany had told me they're afraid to report bullying and sexual harassment by professors. I was terribly saddened to hear that, but I can't blame them in the least. I still see a lot of good at the University at Albany and with SUNY, but this has been overwhelming and quite disturbing.

Thank you for any help you can provide,

Christopher K. Philippo
Glenmont, New York

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"Retaliation is an intentional act taken against an individual who initiates any sexual misconduct complaint, including stalking or intimate partner violence, pursues legal recourse for such a complaint, or participates in any manner in the investigation of such a report. Any act of retaliation is prohibited and is subject to judicial referral" [bold emphasis in original].
"Sexual Assault: Reporting Options, Victim's Rights Statement and Prevention Programs." Student Code of Conduct. Appendix J. University at Albany. http://www.albany.edu/studentconduct/27173.php

"Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act" whistleblower protection:
"The statute now includes language specifically protecting whistleblowers who report violations of the Clery Act. This section is effective immediately" (2).
Storch, Joseph. "2008 Changes to Clery Act Reporting Requirements." September 2, 2008. SUNY.edu. http://www.suny.edu/govtRelations/federal/pdf/2008-68%20Guidance%20on%202008%20Changes%20to%20Clery%20Act%20Reporting%20Requirements.pdf

"Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act" 20 U.S.C. § 1092(f) (17)

"Nothing in this subsection shall be construed to permit an institution, or an officer, employee, or agent of an institution, participating in any program under this subchapter and part C of subchapter I of chapter 34 of title 42 to retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual with respect to the implementation of any provision of this subsection."

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“Make you the world a bit better or more beautiful because you have lived in it.” - Edward W. Bok

* * *

Even firearms violations, when brought to the attention of Mr. King, Ms. Zimpher, and others, did not result in responses from them. The following was sent to them in an e-mail "official word on SUNY Police & firearms violations?" May 17, 2013 at 5:24:06 PM EDT:

"Sunday night's incident apparently induced panic as many students cowered in their dorm rooms in fear, while some crouched in corners and said prayers after reports about a gunman on campus began to circulate around 8:20 p.m. At 9:30 p.m. the school finally sent out an email notifying students that the gunman was actually an off-duty law enforcement officer who was there to move a family member out of the Livingston Tower dorm. […] No official word on why the law enforcement officer felt it necessary to wear a weapon while moving his child out of the dorm. Although it's apparently legal for an off-duty officer to carry a weapon, Luntta said he was not sure if the man's possession of the gun on campus was a violation of school policy"
Waldman, Scott. "Campus Notebook: Tense moments for UAlbany students." Albany Times Union. May 16, 2013. http://www.timesunion.com/local/article/Campus-Notebook-Tense-moments-for-UAlbany-4523960.php

It was pointed out to them that it was problematic that Director of Media Relations Karl Luntta was unsure if the possession of a gun on campus was a violation of school policy (SUNY Albany is, after all, a campus where there'd been an armed man who took a lecture hall hostage and shot a student, and at least two students who disappeared and have never been found):

"The rules of the State University Board of Trustees (8 NYCRR §535.3 (j)) prohibit the possession of air guns, firearms, rifles, shotguns or other weapons on a state-operated campus of the University without the written authorization of the campus president."

"No air gun, firearm, rifle, shotgun or weapon may be possessed, stored, discharged, loaded or used on property owned or leased by the University unless the person in possession of said device meets the requirements set forth in these administrative procedures. The president of each state-operated campus may, in accordance with the provisions of section 590.3 of the rules of the University Board of Trustees (8 NYCRR § 590.3), grant written authorization to students, faculty, staff or other persons to permit the possession and storage of air guns, firearms, rifles, shotguns and weapons on campus only where such possession is required or permitted for the purposes specified in said section. When authorized, they will be stored unloaded in an appropriately secured area within or under the control of the University police department of each state-operated campus."

"When authorization is given to University police officers to carry firearms on duty, the weapon to be carried shall be state-owned and approved by the campus president. Only an officially issued firearm will be carried at any time on duty."

"Firearms on State-operated Campuses" policy item http://www.suny.edu/sunypp/documents.cfm?doc_id=367

535.3 (j) "No person, either singly or in concert with others, shall: […] Knowingly have in his possession upon any premises to which these rules apply, any rifle, shotgun, pistol, revolver, or other firearm or weapon without the written authorization of the chief administrative officer; whether or not a license to possess the same has been issued to such person" http://www.albany.edu/studentconduct/assets/Community_Rights_FINAL_10-28-11.pdf

"Firearms, Rifles, Airguns and Shotguns." 8 NYCRR Part 590 http://www.suny.edu/sunypp/documents.cfm?doc_id=116
http://www.suny.edu/sunypp/documents.cfm?doc_id=96

See also sections of the SUNY Police Manual, e.g. 70.02, 70.03, 75.11, etc. http://www.suny.edu/sunypp/documents.cfm?doc_id=364

* * *

They did not respond. SUNY Police Commissioner R. Bruce McBride, City of Albany Police Chief (and SUNY Albany student) Steven Krokoff, Albany County Sheriff Craig Apple, and the NYS Police Internal Affairs did not respond either, nor did the Editor/Vice President and the Education Editor at the University at Albany Foundation Board of Directors' President's newspaper the Albany Times Union, among others. There seems to have been still no "official word on why the law enforcement officer felt it necessary to wear a weapon while moving his child out of the dorm". Whether the man was even censured, I do not know.

I would like a copy of my original complaint, particularly if it is needed to appeal from the determination. I again note that OCR and I appear to be in agreement that the determination OCR filed is a written instrument containing false statements; if there were no false statements in it, then there ought to have been no problem complying with the Jan. 7, 2014 FOIA request for documents referenced in the determination which were not provided in response to the previous FOIA request. If the determination being a filed written instrument containing false statements leads to a different set of procedures being pursued, particularly if it being a filed written instrument containing false statements excludes the possibility of appealing from it, then I would like very much to know what they are.

Christopher K. Philippo

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 7, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00448-F.

Thank you for your help.

From: Cook, Elise

Please call me. (202) 401-8365

From: Christopher Philippo

I received via USPS today a letter dated May 15, 2014 signed by Timothy C.J. Blanchard indicating "OCR has no other documents, including any other documents you have requested above that have not already been provided, that are responsive to your request."

Mr. Blanchard's signed statement seems to further indicate that the U.S. Department of Education Office for Civil Rights submitted false statements for filing in their letter dated January 23, 2013 setting forth OCR's determination concerning Case No. 02-12-2157 University at Albany, State University of New York. OCR referenced non-existent documents, made false claims, and made a determination in which OCR failed to have SUNY Albany censured, fined, or prosecuted for the threats sent to me and my mother, e.g. threats by the alleged President of the SUNY-wide judicial administrators group Clarence L. McNeill in retaliation for my having reported academic dishonesty, faculty ethics violations, sexual harassment, and retaliation; threats that have included, but not been limited to:

"Continued attempts to discredit/disparage Prof. Barberich [i.e. attempts to report him for academic dishonesty, sexual harassment, faculty ethics violations, and retaliation as SUNY Albany variously encourages and requires students to do] will only provide him fuel in a civil/criminal arena and make you out to look like you are harassing him (and now possibly Dr. Altarriba)
"Please take this as a final warning. You need to forget about Prof. Barberich."

"I am directing you to refrain from entering the Social Sciences building effective immediately. [...] I have taken the liberty of notifying the University Police of this decision and they will respond accordingly if you fail to comply with this request. The cease and desist is still in effect."

The so-called "cease and desist" mentioned above was an e-mail with the subject line "Good Morning" in which "cease," "desist," or "cease and desist" did not appear. In it Mr. McNeill recommended that I voluntarily choose not to communicate with anyone about the academic dishonesty, faculty ethics violations, sexual harassment, or retaliation by visiting assistant professor of Communication Michael Barberich: "you should refrain from any and all communications with (or about) Prof. Barberich from this moment forward." That advice ran contrary to SUNY Albany written policy: "Victims shall: [...] Be free from any threat of retaliation or other attempt to prevent the reporting of sexual misconduct; Be free from unwanted pressure from campus personnel to: [...] Refrain from reporting sexual assaults for any reason, including the fear of unwanted personal publicity." http://www.albany.edu/studentconduct/27173.php In subsequently claiming that the advice had been a "cease and desist order" and that the "order" had been violating, Clarence L. McNeill escalated SUNY Albany's retaliation for reporting sexual misconduct. Retaliation for reporting sexual misconduct is supposed to be reported to Director of Conflict Resolution and Civic Responsibility Clarence L. McNeill "Any threat of retaliation or other attempts to prevent the reporting of sexual misconduct will be prohibited and is subject to disciplinary action. Reports of retaliation should be made to the Director of Conflict Resolution and Civic Responsibility (518-442-­5501) and/or the Associate Director of Residential Life/Quad Supervisor (518-442­-5875) who will assist in filing a complaint for university disciplinary action." http://www.albany.edu/studentconduct/27173.php Mr. McNeill, however, claimed in writing to my mother and I that it is not reported to him.

"Effective immediately, you are hereby notified that you are to cease and desist all contact with any office, department, unit or employee at the University other than me. As of this date, the University has designated me as your sole contact for all written and oral communication with the University, including, but not limited to, telephone calls and messages, emails, and mailed and faxed correspondence. I will determine when and if your communications will be addressed by the University. […]
“If you continue to contact others at the University, the University may consider your actions to constitute harassment, and consult with local authorities about the University’s options to protect its interests. Thank you."

SUNY Albany is willing to send written threats to victims and witnesses and their families even after they graduate with respect to sexual harassment (which it defines as a form of sexual assault). One shudders to think how vicious it must be in retaliating against anyone who reports physical sexual assaults.

As it is, it's already known that the ex-athlete, ex-coach, football fan and so-called SUNY Albany Police Chief J. "Frank" Wiley chose not to report a gang rape by SUNY Albany football players to the Albany County District Attorney's Office ASAP so that the DA's office could help strengthen the case for the prosecution and provide better victims' services. Mr. Wiley instead only reported it after the media had done so, which thereby forced his hand.

Mr. Wiley did not see as a police matter a retaliatory and fraudulent cease and desist order with his own name on it written by Clarence L. McNeill, instead claiming he'd refer the matter to an office which doesn't exist. When informed of false police reports filed by his men, he claimed he'd have someone contact me regarding correcting or amending those reports; like so much of what Mr. Wiley states, that was a lie on his part. Mr. Wiley presented his chief's award for excellence to one of his investigators for her work in the year she failed to solve the disappearance of SUNY Albany student Suzanne Lyall, an investigator who was subsequently found to have a major area drug operation at her home and to have brought an unregistered junk gun on campus which she then had a fellow officer hide at his own home. Under Mr. Wiley, rather than see that agreements or memorandums of understanding (MOU) were made with all local law enforcement agencies, the SUNY Albany Police Department chose to make a MOU with the SUNY Albany football team - for whom they'd also created a ride-along program.

Is it any wonder that women who work at the university told me that they were afraid to report bullying and sexual harassment by professors there and refrained from doing so? UAlbany appears to have a long history of vicious retaliation against students for reporting the things that faculty, staff, or administrators should have reported.

"Smith, R. Jeffery. 'SUNY at Albany Admits Research Violations,' Science 198 (18 November 1977), pp. 708.
"This is a brief statement of Albany's owning up to violations of the rights of human subjects. Specifically, Science reports that this University was guilty of: 1) not obtaining the voluntary, informed, and written consent of the research participants; 2) failing to make a fair explanation to each participant of the risks involved; 3) failing to have the experiments reviewed by an approved institutional review board; and, 4) failing to supervise the experiments properly.
"It is reported here that Albany could have been fined $975,000. Whalen suspended the $100,000 fine which was imposed.
"What is interesting is that the reporter deals only with the superficial facts of the case. For example, there is not a suggestion of what actually went on at the school, what the research involved, how that work was done, who had been hurt. There is not a word about Brock Kilbourne and yet he is one of the few who was really injured in all of this. The reporter seems to have decided the 'important' facts of this case. This is illustrative of how much of any deviance story gets told."
http://www.albany.edu/~scifraud/data/sci_fraud_0479.html

"The case of Brock Kilbourne and the University at Albany is still, to me, outrageous. Brock as a graduate student was a TA to a senior professor in his department. That senior professor had been engaged in research involving student subjects and, according to Brock, had endangered the lives of those students. Young Brock "blew the whistle" on his professor. The department involved stood behind the professor and the University at Albany tried to stonewall the investigation by the NY State Health Department, the agency charged with investigating the charges. The heroic behavior of the whistle-blower in this case was completely ignored: what has never been forgotten was that he had been a whistle-blower.
"Eventually, the University was found to be guilty of abuse of students and severely fined. Brock, as whistle-blower, got nothing: nothing from his department, nothing from the University. He was forced out of the graduate program. The idealist who did what he thought was right slipped between the cracks and was ignored by the University and the department. Far from helping him, the University and the department tried to weasel their ways out of their difficulties and, as they saw it, Brock Kilbourne was one of their difficulties: he was no hero to the department and no hero to the NY State Department of Health. Brock, for blowing the whistle, was at best forgotten, at worst, as he learned later, to continue to pay for his whistle-blowing.
"I was able, through friends, to get Brock another graduate appointment and he did finish his Ph.D. He went on to marry Maria. They left for the other school and were told, several months after their acceptance into that program: 'If we had known what you did back at Albany, we never would have accepted you here.' Then, as now, Brock's whistle-blowing continues to cost him dearly: he has been unable to find work in his chosen field."
Higgins, A. C. "Science's Dark Side." Discussion of Fraud in Science listserv. April 11, 1992.

SUNY Albany doesn't seem to be much kinder with respect to faculty who report things there.

Begin forwarded message:

From: John Monfasani
Subject: Re: meeting
Date: July 11, 2012 at 10:17:00 PM EDT
To: Christopher Philippo

Wasn't fun, I can tell you that, and, yes, I've paid a price since then. But more when we talk. J

John Monfasani
Distinguished Professor
History Department
The University at Albany, State University of New York
1400 Washington Avenue
Albany, New York 12222

On 7/11/2012 10:12 PM, Christopher Philippo wrote:

[>]What was your experience like in the wake of your open letter?

[>]You held onto your job somehow, but I bet there were those who wanted you out? Possibly still make you uncomfortable there today?

[>]Chris

[End quoted e-mail]

"THE PRESIDENT [...] we need to keep saying to anyone out there who has ever been assaulted, you are not alone. You will never be alone. We have your back. I’ve got your back."
http://www.whitehouse.gov/photos-and-video/video/2014/01/22/president-and-vice-president-speak-preventing-sexual-assault?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+whitehouse%2Fiphone_video+(iPhone+Video)#transcript

He can keep saying that all he likes. OCR's actions seem to prove that merely saying something doesn't amount to much of anything, however.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 7, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00448-F.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 7, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00448-F.

Thank you for your help.

From: Cook, Elise

The response above was sent to you on May 15, 2014

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