January 06, 2021

University of Mississippi Moves to Dismiss Suit by Ombuds

The University of Mississippi has filed a motion to dismiss the civil action filed by its own Ombuds, Paul Caffera. This is the latest development in a long-running scandal involving allegations of racism, sexism, homophobia, cronyism, cover-ups, and retaliation by administrators and wealthy alumni that has drawn in the University Ombuds. In November 2020, Caffera retained his own attorney and filed suit in state chancery court, seeking an injunction to protect his confidential communications, discovery of the allegations against him, and declaratory relief upholding the Ombuds' Charter and awarding attorney's fees.

The university makes several arguments for a dismissal:

Action is Barred by Separation of Powers -- The public university asserts that the court cannot intervene because it is part of the state executive branch. UM argues that the state constitution entitles it to great deference by the court in interpreting policy decisions, including the university's personnel investigation of Caffera. 
Case is Not Ripe -- UM argues that Caffera is required to exhaust his administrative remedies before seeking a remedy in court. The university asserts that its investigation has not resulted in any findings or personnel actions, and that these are a necessary before an action can come before the court.
University's Investigation Preempts Discovery -- The university argues that cannot be ordered to provide information that Caffera would not be entitled to through administrative processes. In other words, Caffera can only information from the university if and when the university conducts an administrative hearing.
Attorney's Fees Cannot be Awarded -- The university says that its policy, which requires prior approval for employees to retain and pay outside counsel, preempts the Ombuds charter. Since UM did not approve Caffera's decision to hire a lawyer, it cannot be forced to pay Caffera's legal fees.
State Law Bars Monetary Relief -- The university argues that the Mississippi Tort Claims Act precludes monetary damages unless a plaintiff gives a one-year pre-suit notice (which Caffera did not file).
The university's motion to dismiss is made solely on the legal sufficiency of the complaint. The court therefore takes Caffera's allegations as true for purposes of the motion. The papers do not indicate a hearing date and both sides have the opportunity to brief the motion further. (UM Motion to Dismiss, via Mississippi Free Press.)

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