Gerald D. Biby
509 Shugart Street
Beatrice, NE 68310
Home Phone (402) 223-0100
Suzanne M Kirkland
Linda L. Roos
Gregory P. Turner
RE: Grievances against Dr. Darrell
Nelson, others unknown to me at this time
Dated
December 16, 1999
The grievance procedure states that at the University of Nebraska (Lincoln) states "It is not the intent of UNL to deal arbitrarily in employment matters, including those pertaining to corrective action and dismissal. In order to provide fairness and equity in the work place, UNL has established an internal review procedure that is accessible to all regular employees."
"A" line employees have a right to appeal any employment action and file a grievance. Those of us who are "B" and "C" line employees only have the right to file a grievance and the filing of the grievance does not protect us from having the employment action carried out. Therefore, we must rely on the grievance procedure to protect our employment position and rights. Fortunately, the Nebraska Supreme Court has ruled that an employee handbook is a contract between an employer and employee.
However, even with these rights, they can still treat employees in an arbitrary way that is not in the spirit of fairness and equity under which the grievance procedure was created. This can happen whenever the Chancellor decides that it warrants a course of action at the conclusion of the grievance process that does not support the findings of the grievance appeal's committee during the grievance process. This was the case in the grievance I filed against Donald Helmuth in June of 1999, then grievance appeal's committee found in my favor in October 1999 and Chancellor Moeser, overturned in January 2000, on the basis that ". . . the facts do not support the allegations . . ."
It has been difficult for me to understand what "facts" do not support the allegations. It is a fact in the Donald Helmuth grievance that my computer was searched against my will, without written authorization as required by UNL policy. Even the people who search my computer said it would not be proper without my authorization. It is a fact that they ordered me to allow the search and police were present to see that I complied with the order. It is a fact that the person searching the computed copied almost everything on my computer.
It is a fact that government employees (like those of us at the University) are protected from invasions of privacy like this (without probably cause and without knowledge of improper conduct) by the Fourth and Fourteenth Amendment to the U.S. of A. Constitution.
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . "The UNL employees searching my computer admitted that they did not have either probable cause or improper conduct grounds. All these facts support my allegation in the Darrell Nelson grievance and in the previous grievance against Donald Helmuth.
The Fourth Amendment to the U.S. Constitution
On June 3rd and June 4th 1999, Dr.
Helmuth, supported by Richard Wood, Darrell Nelson and the Director of
UNL police began a foray into my office, using personnel from the UNL police
department to search my files and computer. This entire incident that took
place over a two-day period, was video taped by me. The humiliation and
anger I feel prevents me from going into the sordid details of what went
on, when you watch the tape, tell me how you would feel? This was all done
under the guise of getting information for the Corn Card arbitration. Everything
copied off my computer was turned over to the off campus counsel for UNL
and NEVER given to Corn Card.
This was nothing more than an attempt
to try to find something on my computer that could be used to impeach or
discredit me or even discover criminal activity. You ask why, because I
was the only one that had documentation regarding the Corn Card International
and University's relationship that was willing to make an up-front initial
stand. No other personnel at UNL associated with this arbitration case
had their files search by people from UNL internal audit or a computer
search by the police, why was I singled out?
It was not until Turan Odabasi's (UNL in house patent attorney) deposition, when he recanted the statements he had been making for 8 months, that someone from the Technology Transfer Office confirmed what I was saying from day one was true. Until the depositions, they told everyone that Dr. Hanna and I were "the bad men" who responsible for the problems between the Technology Transfer Office and Corn Card International.
There are three core issues "as I see it" and the violation of specific laws and rights (based upon my personal research at the Law Library and other places), and a fourth issue associated with defamation since I left the University.
Core Issues
1. The search of my computer at UNL on June 4, 1999 (This is very well documented with the video tape and audio tapes, letter from Dr. Nelson and Fax from Dr. Helmuth. Even in the video tape UNL states they cannot do a search without my authorization.) In the Donald Helmuth Grievance Process (Step 2) he stated that counsel directed him to have my computer searched (taped recorded by Suzanne Drew). In the Step 2 of the Darrell Nelson grievance process, Darrell Nelson stated that Dick Wood directed him to have Gerald Biby's computer search (taped recorded by Gerald Biby). If this is true that Dick Wood directed my computer search, then I am appalled that an officer of the court would participate in a knowingly improper or illegal act. Donald Helmuth brought up his name also in the meeting of June 3, 1999 saying that the UNL must turn over all information to Corn Card because of Dick Woods responsibility as an officer of the court. However, none of the information copied was ever turned over to Corn Card, although there was information contained on Gerald Biby's computer that Corn Card was entitled to have during the discovery process.
UNL specifically has a policy prohibiting a computer search, unless the person whose computer is going to be searched signs a release - I signed no release. The Electronic Privacy Act, and the Fourth Amendment to the Constitution both appear to have been violated by the search of Gerald Biby's Computer. Specifically the Fourth Amendment prohibits searches of government (city, country state, federal) computers without probably cause.
To intimidate me they sent of a police detective the first day and a uniformed officer the second day of the search and kept the uniformed officer outside my office all day. I went home sick with stress. They found nothing on my computer. It was a fishing trip to try to find something to discredit me in prior to me testifying in the dispute between the small company and the University.
A. Violation of Federal Privacy Laws including but not limited to the Electronic Privacy Act of 1986, Title II, accessing computer information without authorization.2. The status "ownership" of intellectual property (patents) and the loss of income to myself because of UNL's actions. Dr. Nelson, the senior supervisor over our unit, repeatedly told me that UNL owned all patents unless it rejected them. He stated the same thing on page 32 of his deposition in the Corn Card civil action. Once I raised the ownership issue on this topic, in my February 1999 letter to Dr. Nelson at UNL "I became a target." All this is documented in the Corn Card depositions, and the UNL Donald Helmuth grievance committee's files and additional email and audio tapes that UNL has not had access to at this time. If UNL had allowed the license to continue and it to be transferred to Gemplus, they would have payed royalties estimated at $5,000,000 (five million) to UNL over an 8-10 year period. Now Gemplus and others are talking to, or working directly with the Midwest Grain and UNL is not receiving any royalties, because UNL canceled Corn Cards license agreement and was not able to negotiate a replacement license with anyone. Now neither the invertors or UNL will get anything.
B. Violation of the Fourth Amendment, laws and court decisions regarding privacy as it specifically covers government employees and its applicability to state employees via the Fourteenth Amendment (U.S. 9th Circuit Court of Appeals, ORTEGA v O'CONNOR 9715073).
C. Violation of my Constitutional right to equal protection because I was singled out as the only person whose computer was search, although they made the representations that it was needed for the Corn Card civil action to be sure that UNL provided all the documents, email, ECT., It had. However, UNL elected NEVER to turn over any of the information from the computer search to the Corn Card's attorney, although there was information that would have benefitted the Corn Card in their civil action against UNL.
D. Violation of UNL Memorandum 16, stating that I must sign authorization for a computer search.
E. Defamation by using the police being stationed outside my door and the ridicule and scorn and looks it produced.
Darrell Nelsons, Donald Helmuth and
apparently University Counsel Richard Woods, believes that intellectual
property (patents) belong to the University unless the University rejects
them. It is this specific issue, I raised in a letter to Dr. Darrell Nelson
in February 1999. Now, I believe this letter, lit a fuse that ultimately
I can only describe as a "rain of terror" initiated against me and Dr.
Milford A. Hanna (Director of the Industrial Agricultural Products Center).
In the letter I sent to Darrell Nelson, I raised the question of ownership
of a patent by UNL and its potential impact on arbitration with Corn Card
International (Exhibit VI).
Even on August 13, 1999, at the time
of Darrell Nelson's deposition (page 32), he still stated, that the University
owned all patents unless they had rejected them. This is not correct according
to the information posted on the Internet regarding intellectual property.
What is so bizarre to me, is that between the time of my February 1999
letter and August 1999, it seems reasonable to me that Dr. Darrell Nelson
and other UNL administrators should have read the university policy. More
specifically Dr. Darrell Nelson (under oath) should not have made a statement
that UNL owned all patents unless they rejected them, especially in light
of how long the policy has been in existence. How can any administrator(s)
justify being in a position of responsibility and authority and not be
aware or/and willing to support Board of Regent Policies?
Although the administration of intellectual
property is well formalized in Board of Regent Policies, UNL administrators
are not carrying out the policy. In my offers of inventions that I have
made to the University, I have never received a written acceptance of any
kind nor have I every seen any documentation on how the royalties would
be split, except the proposed royalty split I always included in my transmittal
letter with the offer of invention. Based upon my understand of business
law, an offer must be followed by an acceptance.
On March 7, 1997, I and my co-inventors submitted an offer of invention
to the University of Nebraska as provided for in the Board of Regents By-Laws
as provided for under its patent policy. This project was a fast-moving
one in the Spring of 1997, with the pending sale of phone cards to Congressman
Bill Barrett by Corn Card International. I wrote the offer of invention
(March 7th) and a provisional patent disclosure (March 14th) and Turan
Odabasi arranged for it to be filed. At the request of the Technology Transfer
Officer, the inventors (Hanna, Biby and Fang) subsequently executed an
affidavit, under an oath that we were hiring Shook, Hardy and Bacon L.L.P.
as our patent attorney. We converted the provisional patent to a non provisional
patent on March 13, 1998 (The applicants and owners, the same as the provisional
patent).
The only overt action by the University
to claim ownership of the technology was the license it issued to Corn
Card International, they sent an electronic copy to me in October 1997,
with no dates or signatures. This was more than six months after the Offer
of Invention in March 1997.
Although the interpretation of license
and assignment agreements is generally a state law question, there are
important federal provisions that one needs to pay attention to, in particular
regarding the recording of assignments in the Patent and Trademark Office
as set forth in 35 U.S.C. sec. 261, which reads in part as follows:
". . . A certificate of acknowledgment under the hand and official seal of a person authorized to administer oaths within the United States, . . . shall be prima facie evidence of the execution of an assignment, grant or conveyance of a patent or application for patent. An assignment, grant or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent and Trademark Office within three months from its date or prior to the date of such subsequent purchase or mortgage."It appears the University did not own the technology at the time it executed the license with Corn Card International or at anytime before the arbitration legal proceeding that commenced in February 1999, or the March 1999 document that Don Helmuth executed giving 50 percent of all royalties to Cargill. Additionally, it was only because of the coercion, that I and the other inventors were under, when we finally execute the assignment in April 1999, I doubt if the execution is valid because of coercion and duress.
A. UNL policy specifically states that they must accept patents within 6 months or they become the property of the inventor.
B. State law governs the assignment of patents.
C. The Nebraska Supreme Court has held that an Employee Handbook is a contract between the Employer and the Employee.
D. Under the Nebraska Statute of Frauds and securities laws (patents or the application thereof), it would appear to support my contention that the acceptance of the patent(s) needed to be in writing. I and my co- inventors made an offer and we have no record of any acceptance or consideration by the university.
E. I want specific performance on all patent offers I made to UNL that they did not accept and have my interest returned.
A. Failure to provided documentation, requested by me before the hearing, that Dr. Nelson agreed to provide (in writing) so I could prepare a rebuttal (defense) of the alleged accusations. Then give me the agreed to time to review the information and prepare a defense. What is even more curious, is that Darrell Nelson and the university administration never believe anything that Bill Brown said was true. That is why the civil action commenced. Now, they are taking one statement/phase and are using it to try to justify my dismissal. Bill Brown and I praying together was revealed to UNL in April 1999 by email, and then no one said I could not pray with Bill Brown (there probably is a constitutional freedom of religion reason that they did not chastise me then). What makes this time different?
B. Failure to the given the same protection as faculty and administrator in appealing an employment action (a right that they have) and failure to have the grievance process be independent and fare, instead the university chancellor can overturn any grievance committee recommendation at will, with no appeal process by the employee.
C. Violation of the University Grievance policy (retaliation) in dismissing me within two weeks after the Corn Card International litigation was settled based on the Corn Card International information.
D. Inappropriate handling or release of confidential or other information not authorized for release including, but not limited to client information and personnel information improperly copied from my computer (by being a party to the unauthorized search of my computer on June 4, 1999).Violation of UNL policy and beyond even the scope of Dr. Nelson's letter ordering access to the Corn Card International information. The information was in encrypted form on my computer (i.e., protected with a password).
E. Threats or acts that affect or are perceived to affect the safety, health, or well-being of another person (the use of intimidation, coercion and other defamatory activities between January 18, 1999 and to the present). Violation of UNL policy.
F. Failure to maintain satisfactory working relationships with students, the public, other employees, or supervisors (the use of intimidation, coercion and other defamatory activities, including a failure to acknowledge the rights of inventors under the Board of Regents Bylaws regarding the University's need to accept an offer of invention within 6 months). Violation of UNL policy.G. Behavior by UNL employees not in the best interest of the University. Violation of UNL policy.
H. Violation of policies and procedures of the University and Board of Regents published for employees on the Internet. UNL does not appear to have a "hard cover" Employee Manual anymore.
I. Violation of Due Process and Equal Protection in the handling of both my grievances and dismissal. The faculty (A line employees) have more rights to appeal university employment actions and file grievances and more assurances over recommendations made to UNL that they will carry them out. Clerical (C line employees) and Managerial/Professional (B line employees) do not have any appeal rights regarding UNL employment actions. A and B line employees cannot appeal their dismissal or other employment actions to anyone. They can only file a grievance. The Chancellor has the right to do whatever he wants with the grievance and there is no appeal.4. About four weeks ago I received a call from a prior employee of the university (Dr. Ralf Tadros, in that call he stated that he had just talked to Turan Odabasi, in house patent attorney for UNL, and that Turan said I had been fired for violating a direct order to not talk to Corn Card International. It is my perception that my employment information was supposed to be confidential.
A second incident took place about two weeks ago when a former client Corn Card International, Bill Brown called me. Bill was at a trade show in New Orleans with the marketing person from Midwest Grain, Norman Worthy. Mr. Worthy told Bill Brown that Gemplus would not work with Midwest Grain if I were involved with them in anyway associated with degradable credit cards. Mr. Worthy stated to Bill Brown that university officials told Gemplus that it was my fault that the Gemplus - Corn Card International agreement was not completed.
A third incident took place last fall (November I believe). Based upon a meeting Dr. Milford Hanna attended, off a campus attorney (Terry Dougherty) lobbied UNL administrators (probably at the direction or encouragement of Richard Wood or Dr. Helmuth) that it was because of me that UNL lost the arbitration case with Corn Card International. Also at the point in time that UNL decided to settle was after Walter O'Farrell brought in a file folder of documents, not provided during discovery (now known as Exhibit 51) that essentially suggested document alerting of two key documents presented to Corn Card's attorney several months earlier, and a concerted effort by Mr. O'Farrell to "jawbone" the Corn Card agreement into oblivion for his own reasons.
Observation
About 500 years ago modern political thinking began. Its enticing surface was the idea of "realism." Its center was the idea that with a worthwhile end, one could justify any means. Its spokesman was Nicolo Machiavelli.
Machiavelli believed that men respect power, but they will take advantage of kindness. He believed that when given the opportunity one must destroy completely, because if one does not he will certainly be destroyed. His views appear to convey the contemporary frailness of ethics and integrity of many organizations. His advice was simple, to leave the end unquestioned and the means unexamined.
For some organizations, Machiavellianism dominates. My observation on dealing with the University is that its belief is based upon a single, simple premise, if you are unemployed, you need to eat and you cannot attack them if you are looking for work and even if you have the stamina to continue your dissent, a time will come when you "give up."
Working within an organization for me has been unsuccessful. After more than 14 months of "going through channels" and "following policies and procedures" it has been my experience that this allowed the people who are the focus of my dissent to have the time to create an image of my cause as "not true" and me personally as "unreliable and untruthful."
My ultimate observation is that if you are dealing with a situation that involves one or more people in a position of authority, that given time, they can exert absolute power over the outcome of your dissent. If it is in their "best interest, they will support" your dissent, however, if it challenges their decisions, actions or activities, your work within the organization will be unsuccessful. This has been my discovery - it may not be yours.
I believed that it would be in the best interest of the organization to solve its problems internally and not with the "dirty laundry" being aired in public. At this point, I now recognize that in my situation, the University is oblivious to whether they settle this internally or in the media.
Therefore, it now appears that only visibility from the public and media can provide the fairness, equity and change that we need at the University of Nebraska.
Thank you for your time and consideration
Sincerely
Gerald D. Biby
cc: State Ombudsman, Terry Ford
Senator Dennis Byars
Nebraska Board of Regents (individually)
