Davie’s Lawyer Alleges Memo Mischief

By Daniel Libit

In a further escalation of tensions between the University of New Mexico and its embattled head football coach, Bob Davie’s lawyer has leveraged new accusations of retaliation against the school in a “supplemental” petition to UNM’s Board of Regents.

On Tuesday afternoon, Davie’s attorney Michael Kennedy sent a combative four-page letter to UNM interim President Chaouki Abdallah. In it, he charged that the university has “unlawfully retaliated” against Davie by, among other things, making certain strategic redactions to the final report produced by an outside law firm UNM had hired to investigate the coach’s conduct.

The appeal letter arrived in Abdallah’s inbox while he was in closed session with UNM’s Board of Regents, which had just announced its decision to deny Davie’s appeal of a 30-day suspension he had been assessed for violating university policies.

Kennedy’s latest salvo was apparently prompted by an email he received Monday afternoon from UNM’s general counsel, Elsa Cole, in which she informed him that a new version of the Hogan Marren law firm report, dated Jan. 30, would be publicly released on the school’s website later that day. A previous version of the report, dated Jan. 16, had been circulated up to that point.

In the letter, Kennedy argued that his client had been intentionally undermined by UNM because Davie had submitted his suspension appeal based on that earlier version of the report. Kennedy insisted that, up to that point, neither he nor Davie were made privy of the updated version. Kenendy characterized the timing of its release in contemptuous terms, accusing the school of “deception” and “intentional misrepresentation” designed to “further discredit and damage Petitioner’s reputation.”

UNM has said that it was compelled to release the Jan. 16 report in response to an Inspection of Public Records act from the Albuquerque Journal.

Nevertheless, Kennedy argues that the sequence of events warrants a separate, independent investigation about whether university officials violated their own policies in issuing Davie’s punishment.

Neither Kennedy nor a UNM spokesperson responded to NMFishbowl.com’s requests for comment.

Upon close scrutiny, Kennedy’s specific gripes don’t necessarily support his dramatic denunciations. For one, Kennedy argues that the release of the new report was principally designed to enfeeble Davie’s public defense. But as of Tuesday night, both versions of the Hogan Marren report appeared on UNM’s newsroom website. (It is not known whether or not this was in response to Kennedy’s letter.)

Kennedy says that Davie’s appeal “relied on exculpatory statements” in the initial report that had been changed or redacted in the later one. Specifically, he cites edits to the section addressing whether Davie forced certain players to play in games, against the recommendations of team doctors. (Davie was fully cleared of this charge.)

Here’s the conclusion to this claim in the Jan. 16 report (emphasis added):

“Because our interviews failed to uncover any specific evidence that the coaching staff overruled physicians and inappropriately played football players that were injured, we determined that it was not necessary to interview Coach Davie or the coaching staff regarding the allegation. Moreover, given the lack of such evidence, we determined that it was not necessary to conduct a more comprehensive review of the medical records of injured players or conduct interviews of other players, coaches, or members of the medical team or training staff.”

Here’s how it is written in the Jan. 30 report (emphasis added):

“Because our interviews failed to uncover any specific evidence that the coaching staff overruled physicians and inappropriately played football players that were injured, we did not conduct a more comprehensive review of the medical records of injured players or conduct additional interviews of other players, Coach Davie or his coach staff, or members of the medical team or training staff.

Additionally, Kennedy accuses UNM of making a deleterious redaction in the section of the Jan. 30 Hogan Marren report addressing the allegation that Davie interfered in the sexual assault investigation of a Lobo football player. According to the report, witnesses told former federal judge Bruce Black that Davie had held an all-team meeting in which he encouraged his players to “get some dirt on this whore,” perhaps the most inflammatory claim in the document, and one that Davie vehemently denied in a statement this week.

The report states that a staffer in UNM’s Office of Equal Opportunity had interviewed a campus police officer involved in the sexual assault investigation, who said that Davie admitted speaking with his players about the case. It is not known what else the officer told OEO, as the next three lines in the Hogan Marren report are blacked out. According to Kennedy’s letter, the redacted portion includes a sentence that reads, “The officer declined to term Coach Davie’s involvement as ‘interference.’”

“The only conceivable explanations for these UNM-selected redactions made and posted yesterday in the 1/30/18 Final Report were to retaliate against Petitioner for filing his Petition and further discredit and damage Petitioner’s reputation,” Kennedy writes.

However, this argument is confounded by the fact that the exact same redaction appears in the Jan. 16 report.

Kennedy describes “substantion additions and deletions” made between the reports, but, aside from the aformentioned, a review by NMFishbowl.com could only find insubstantial changes.

Without evidence, Kennedy alleges that “critical portions” of the Jan. 30 report were authored by UNM administrators and not by Hogan Marren lawyers. Kennedy claims in the letter that unnamed “UNM administrators” had told Davie that Abdallah had told others that the report cleared the Lobo football coach. And he raises suspicion about timing of Elsa Cole submitting her retirement notice on the same day that Davie’s suspension was handed down.