Oklahoma State University President Burns Hargis might have violated a university policy prohibiting the use of OSU email for commercial purposes by sending more than 750 emails possibly related to Chesapeake Energy during the past four years.
Hargis insists he was not in violation of the policy, but his refusal to release the emails to The Daily O’Collegian and The Wall Street Journal makes verification impossible.
University officials said the emails “in no way conduct the transaction of public business” and should not be considered public records.
The emails could shed light on the recent operations of the nation’s second-largest natural gas producer, which has been accused of unethical business practices since June.
A government ethicist said Hargis’ refusal to release the emails raises a “red flag” indicating a potential conflict of interest for the president, who was paid a little more than $560,000 in 2011 as a member of the Chesapeake Energy Board of Directors.
“This is what I call serving two masters,” said Judy Nadler, a senior fellow in government ethics at the Markkula Center for ethics at Santa Clara University in California.
“On the one hand, he has an obligation to this company to advance the welfare of the company. This includes not divulging any confidential material or whatever else,” Nadler said. “On the other hand, as the president of the university, he has a responsibility to be accountable to the public.
“And so, this is one of those things where you can’t have it both ways.”
Under OSU’s email policy, “the use of university computing systems for commercial purposes is strictly forbidden. The sending of electronic mail, which is commercial in character, is a violation of this acceptable use policy.”
During an interview in November, Hargis said he doesn’t believe he violated the policy. But he refused to disclose the content of the emails.
“If I’m not going to release the emails, I’m probably not going to talk about what they say,” Hargis said.
In September and August respectively, The Daily O’Collegian and The Wall Street Journal made an open records request for emails sent and received by Hargis on his OSU emails account containing the words “Chesapeake,” “Aubrey,” “McClendon,” and emails between Hargis and former members of the Chesapeake Board.
A 2001 Oklahoma attorney general’s opinion outlines which government emails are considered public records.
Then Attorney General Drew Edmonson wrote, “Email created or received by a public body in connection with the transaction of public business, the expenditure of public funds or the administering of public property is a record subject to the Open Records Act.
“An email between government employees making lunch plans, if such use is permitted by the agency, generally would not be considered a public record because it would not be in connection with public business, spending public money or administering public property.”
Hargis said his emails would fall under this exemption because he sometimes receives emails and can’t control what people send to him.
Hargis said he normally conducts Chesapeake business on his home computer.
The Chesapeake Board removed CEO Aubrey McClendon as chairman of the board in June after Reuters reported he took out about $1 billion worth of loans using his company interest in gas wells as collateral.
McClendon remains CEO of the company and continues to serve as a member of the board.
At a June meeting, Chesapeake shareholders voted to remove Hargis from the board. He submitted his resignation shortly afterward but was retained on the board to complete a review of McClendon’s financial arrangements, according to Reuters.
McClendon’s actions have prompted a federal class action lawsuit by shareholders accusing him of acting irresponsibly. The lawsuit “question(s) whether (McClendon) has (shareholder’s) interests or his own at heart.”
The lawsuit also points out that after the Reuters story, the Chesapeake Board issued a press release saying the Board of Directors was “fully aware” of McClendon’s loans. Hargis is not mentioned in the lawsuit.
Government ethics expert Kathleen Clark said she believes Hargis’ positions as president and board member presents a strong conflict of interest.
“The fact that he is serving in both capacities really calls into question anything he does at the intersection of the two,” said Clark, who is a professor of government ethics at Washington University Law School in St. Louis.
As the former mayor of Santa Clara, Calif., Nadler said she is an advocate for transparency in government.
“It is not OK to use the private sector standards when you are a public sector employee,” she said. “The question is why would he want to hide anything?”
She said in her opinion, public officials should err on the side of disclosure, especially when said figure is also an employee of a private company.
“The president refusing to release his emails when he is in fact intimately aligned with this controversy raises more questions than it answers,” she said.