Procedural Asymmetry: Dr. Bradley Foerster Raises Outside-Counsel Concern with President Schlissel — Outside Counsel Responds (2019)

On May 29, 2019, Dr. Bradley Foerster emailed the University of Michigan Office of the President requesting a meeting with President Mark Schlissel and attached a short video request.

In the same email, Dr. Foerster advised the President that he was preparing a written response to the May 24, 2019 SACUA Review Hearing decision.

May 29, 2019 email transmitting Dr. Foerster’s video request to the Office of the President.

Video Request and Outside-Counsel Concern

The video attached to Dr. Foerster’s May 29, 2019 email included Dr. Foerster and his children, Peter and Maria. In the video, Dr. Foerster raised the outside-counsel issue he had recently identified in SACUA’s written guidance, explaining that he had represented himself during the 5.09 proceedings while the University had retained experienced outside counsel Daniel B. Tukel.

The following is a partial transcript of the video:

“One of the big issues is that the University has hired an outside attorney Daniel Tukel who is an experienced employment lawyer. I just found that that’s it’s prohibited according to the 5.09 bylaws to use an external attorney let alone office of general counsel if I’m not represented by legal counsel and I’ve represented myself.

So definitely this has altered the trajectory of both of these hearings. I raised this issue to the SACUA for whatever reason they didn’t address this critical, critical issue.

So once again, I am requesting a formal meeting with you. I’d be happy to do it in person. My family Peter and Maria would love to meet you too. We can do it over Skype if that’s more convenient for you.

Thanks very much for your attention and I look forward to hearing from you.”

May 29, 2019 video request to President Mark Schlissel. Dr. Foerster appears in the video with his children, Peter and Maria.

Outside Counsel Responds

The following morning, May 30, 2019, Mr. Tukel emailed Dr. Foerster regarding his contacts with the President’s Office.

The timing is significant. Four days earlier, on May 26, Dr. Foerster had written directly to Mr. Tukel challenging his role as outside counsel in proceedings in which Dr. Foerster had represented himself and raising multiple questions concerning the 5.09 process.

Read the May 26, 2019 written challenge to Mr. Tukel.

Mr. Tukel’s May 30 email did not address that letter. Instead, he wrote:

“I have been informed that you have repeatedly contacted President Schlissel’s office asking for a personal meeting regarding the ongoing 5.09 process, and asking for confirmation as to the due date for any comments regarding the SACUA Review Committee report.”

Mr. Tukel stated that President Schlissel would not meet personally with Dr. Foerster and instructed him to refrain from contacting the President or his office except as specifically provided in the 5.09 process.

Mr. Tukel also stated that the University would not provide Dr. Foerster with advice concerning his rights and responsibilities in the proceeding and that Dr. Foerster could obtain such advice from his own advisor or legal representative.

Sixteen minutes later, Dr. Foerster responded, copying SACUA outside counsel Bruce Wallace and Angela Jackson.

Dr. Foerster disputed Mr. Tukel’s characterization that he had “repeatedly” contacted the President’s Office and documented the sequence of his contacts. He then asked Mr. Tukel directly:

“Can you please clarify if you are representing the President's Office for the University of Michigan?”

Dr. Foerster continued:

“If so, can you please clarify why this is not a conflict of interest? If you are not officially representing the President's Office, then under what jurisdiction and authorization are you sending me this email?”

Dr. Foerster also clarified the nature of his request concerning the deadline. He explained that he was seeking a firm due date for submitting his comments to the President because deadlines under the 5.09 process had received differing interpretations from University entities. He characterized confirmation of that deadline as a matter of due process.

Finally, Dr. Foerster expressly reminded Mr. Tukel that his May 26 letter remained unanswered:

“Also, I look forward to hearing back from you regarding the my letter of inquiry I sent you on May 26 2019.”

The documentary record reviewed for this post contains no subsequent response from Mr. Tukel addressing the questions concerning his role or answering the May 26 letter.

The complete May 30, 2019 exchange is reproduced below. Because the Gmail printout displays the thread in reverse chronological order, Dr. Foerster’s 10:02 a.m. response appears first, followed by Mr. Tukel’s 9:46 a.m. email.

The SACUA Procedural Guidance

The concern Dr. Foerster raised with President Schlissel on May 29, 2019 centered on the written Senate Advisory Committee on University Affairs (SACUA) Overview of the process in a Regents’ Bylaws 5.09 hearing conducted under Section 5.

Dr. Foerster discovered the document only in late May 2019—after the three Medical School Ad Hoc Committee hearings in November 2018 and the May 1, 2019 SACUA appeal hearing had already concluded.

The SACUA overview states:

“In those cases where the faculty member has retained an attorney to represent him or her in the 5.09 proceedings, the Office of the General Counsel will represent the administration during the proceedings.”

The guidance continues that “in these cases” the University should hire an external attorney to advise SACUA and the Tenure Committee on matters of process and procedure.

After discovering the guidance, Dr. Foerster challenged the outside-counsel structure in writing. On May 26, 2019, he separately questioned administration-side outside counsel Daniel Tukel and SACUA outside counsel Bruce Wallace regarding their respective roles in proceedings in which Dr. Foerster had represented himself. Three days later, on May 29, he raised the outside-counsel concern directly with President Schlissel while the 5.09 process remained pending.

The later FOIA record added financial context to those concerns: University records attributed a combined $377,818.11 in outside-counsel charges to Butzel Long and Hooper Hathaway for Dr. Foerster’s 5.09 proceedings.

SACUA Bylaw 5.09 Hearing Overview

The complete SACUA Bylaw 5.09 hearing overview is reproduced below.

Selected Reporting

Author Image

Brad Foerster, MD PhD

Brad Foerster is a FOIA advocate documenting requests, transparency disputes, and accountability investigations involving public agencies, universities, police oversight, and Russia-Gate related inquiries. His work compiles original documents, timelines, and analysis of public records and institutional responses. Brad is also a board-certified radiologist, author of Town & Gown, and has published over 40 peer-reviewed articles. Brad lives in Potomac, Maryland with his family and is a member of the Montgomery County Medical Society and the Takoma Park U.S. & World History Book Club.