UNC System lawyer with ties to BOG members told to ‘cease and desist’ following Gerlach investigation

The UNC Board of Governors prepares to begin a meeting on October 29, 2019
The UNC Board of Governors prepares to begin a meeting on October 29, 2019(Corey Schmidt)
Updated: Nov. 4, 2019 at 12:32 PM EST
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CHAPEL HILL, N.C. (WBTV) – The top lawyer for the University of North Carolina System has sent two cease and desist letters to an attorney who has worked for at least two members of the UNC Board of Governors.

Tom Shanahan, the UNC System’s general counsel, sent two letters last week - one on October 28 and the second on November 1 - to attorney Peter Romary demanding he stop representing himself as someone working on behalf of the UNC System, the Board of Governors or individual members of the Board of Governors.

Romary, an attorney based in Hillsborough, filed a petition in late October to obtain copies of surveillance video from the City of Greenville that shows then-Interim ECU Chancellor Dan Gerlach walking unsteadily to his car, getting in and driving away.

Gerlach was placed on paid leave in late September after photos of him emerged that showed him drinking heavily at a bar near campus.

He resigned in late October after the videos of him driving late on the evening he was photographed drinking emerged.

Although Romary ultimately filed a court petition to obtain those videos on behalf of the Police Benevolence Association and the Fraternal Order of Police, an email attached to Shanahan’s November 1 email shows Romary first contacted a lawyer for the City of Greenville as an attorney representing members of the UNC BOG and individual members of the ECU Board of Trustees.

“I have been retained by some private parties, including a couple members of the ECU Board of Trustees and UNC Board of Governors – this in response to an ever changing story from Dan Gerlach and an allegation of a ‘set up’ by him and some who support him,” Romary wrote in an email to a city attorney on October 15 requesting access to the videos.

“That said, I would like to look at and view the video surveillance on the basis that my clients may be alleged at some time to be on them,” Romary’s email continued. “I have also spoken to a Judge, friend of 25 years, and they are quite annoyed about this. So, I am writing, requesting access to or copies of GPD surveillance camera footage.”

But in a phone interview with WBTV on Sunday night Romary refused to say who, specifically, on the UNC BOG or the ECU BOT he represented, first claiming the information was protected by the attorney-client privilege and later saying he had promised his clients to not disclose their identities after a reporter pointed out the identity of clients is not, in fact, protected by the privilege.

Romary has previously worked for UNC BOG members Harry Smith and Tom Fetzer.

Petition for Gerlach video

A judge later signed an order granting release of the video of Gerlach. Court records show the petition was filed with a court with the consent of the city. The records also show less than an hour lapsed between the petition being filed and a judge signing an order releasing the video.

Typically, days or weeks elapse between a petition or law enforcement agency recordings being filed and a judge holding a hearing on whether they should be released.

The order for release came one day before the video of Gerlach was distributed to media outlets across the state - including WBTV - by an anonymous account. In an interview Sunday night, Romary denied sending the video to the media.

In his phone interview Sunday, Romary said he filed his petition on behalf of the police organizations and not anyone affiliated with ECU or the UNC System because the university officials later told him the system had hired their own outside investigators to obtain the video, among other things.

The system has hired the law firm Womble Bond Dickinson to conduct its investigation related to the Gerlach matter.

A report summarizing the firm’s findings has been prepared and was presented to the UNC BOG at a specially called meeting last week. To date, the system has refused to produce any part of that report to the public, despite a requirement to do so under the state’s Public Records Act.

Who does Romary represent?

But Shanahan’s letters to Romary reference findings of the investigation and accuse him of representing himself as working on behalf of the university system.

“We understand that you have represented to one or more individuals that you have been engaged by the Board of Governors to perform ‘investigative work’ for the University,” Shanahan’s letter on October 28 said. “As you know, the UNC Board of Governors has not at any point authorized you to perform any work on the University’s behalf, including but not limited to any ‘investigative work.’”

Romary responded to Shanahan’s October 28 letter with an email hours later denying the allegation.

“I have never personally, or to my knowledge, has anyone on my behalf, represented that I am providing "investigative services" or am an agent, servant, or employee of the University of North Carolina or that I am an employee or representative of the UNC Board of Governors,” Romary said in an email to Shanahan.

But, in that same October 28 email, Romary did confirm that he represented members of the UNC BOG.

“You are correct that I have been retained by members of the UNC Board of Governors and I will confirm that I have told some people that I have been retained by "x" who is a member of the Board of Governors. I have also been asked to perform work for people on the BoG who may plan to present it to the BoG,” his email said.

Romary would not answer the question when asked specifically in Sunday night’s phone interview whether he was worked on behalf of Harry Smith and Tom Fetzer, citing, again, his pledge to keep his clients’ identity confidential.

In his second letter on November 1, Shanahan accused Romary of telling an ECU employee that he was conducting investigative work on behalf of the BOG to obtain a complaint that Romary later forwarded to Smith, the former BOG chairman.

“I am writing to follow up on my First Notice to inform you that the University has since learned of additional instances of you indicating or implying that you represent members of the Board of Governors, the ECU Board of Trustees, and/or the University,” Shanahan’s November 1 letter said.

In the call Sunday night, Romary denied ever claiming to have worked on behalf of any official university-related entity.

Specifically, Romary pointed to his October 15 email where he said he represented private individuals.

In a phone call Monday morning, Smith acknowledged retaining Romary on a previous matter but denied hiring Romary for anything related to the Gerlach case and said any assertion otherwise would be false.

Smith said he is not aware of any UNC BOG members having retained Romary for work related the Gerlach matter.

Fetzer declined to comment for this story.

Romary said he had hired two national law firms to explore his legal options in response to the letters from Shanahan on behalf of the system.

A spokesman for the system did not respond to an email sent late Sunday night seeking comment in response to Romary’s claims during the interview.

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