By Jane R. Elgass
“It is clear that the court did not like the procedures used in the last presidential search and we won’t do another one that way.”
That was the reaction of General Counsel Elsa K. Cole to last week’s state Supreme Court ruling that found the Board of Regents guilty of violating the Open Meetings Act (OMA) during their presidential search that culminated in the election of President James J. Duderstadt in June 1988.
The Ann Arbor News, later joined by the Detroit Free Press, charged the Regents with violation of the Open Meetings Act in the procedures used for the search and also sought disclosure of Regents’ travel records under the Freedom of Information Act (FOIA).
In an opinion by Justice Conrad L. Mallett Jr., joined by Chief Justice Michael F. Cavanagh and Justices Charles L. Levin and James H. Brickley, the court found that the Regents violated both statutes and said:
“All deliberations, decisions and interviews regarding presidential searches at public universities must be conducted openly, consistent with the requirements of the OMA. Travel expense records connected with such searches are not exempt from a request for disclosure under the FOIA,” according to the syllabus prepared by the Reporter of Decisions for the court.
“The Open Meetings Act requires a public meeting for all decisions of a public body and all deliberations involving a quorum of its members. … The Univer-sity of Michigan Board of Regents is a public body, as are its subcommittees, including a committee consisting of a single member, that are empowered to exercise its authority. The selection of its president is an exercise of governmental authority, regardless of whether it was made by an individual regent, a nominating committee, the entire board or a subcommittee.
“The OMA applies to all decisions by public bodies regardless of whether there is a formal vote. In this case, the board adopted a procedure that violated the OMA because the only part of the decision-making process that occurred in public was the final step—selecting the president from a list of one. The PSC [President Search Committee] did not make a public decision to appoint the president; it merely announced its decision publicly. In addition, all interviews by a public body for employment in or appointment to a public office must be held in an open meeting. The board, in further violation of the act, went beyond the OMA exception permitting closed sessions to review personal matters contained in a candidate’s application in reducing the number of candidates by conducting closed interviews.
“The board was not justified in failing to disclose the travel expense records of certain regents under … the Freedom of Information Act, which exempts disclosure of information of a personal nature that would constitute a clearly unwarranted invasion of privacy. Travel expense records of a public body do not contain such information.”
The ruling, however, still does not make clear what procedures are permissible. Cole notes that Justice Patricia J. Boyle suggests in a separate opinion that the University could consider using advisory committees in a future search.
Boyle said: “To maintain the confidentiality requested by preliminary candidates and to recommend a pool of finalists for consideration by the full public body, a true advisory committee should have been created.”
Justice Charles L. Levin concurred with this portion of Boyle’s opinion.
Justice Dorothy Comstock Riley, joined by Justice Robert P. Griffin, dissented, stating that “application of the OMA and the FOIA to governing boards of public universities during the selection of university presidents violates the autonomy vested in the boards” by the state Constitution, “and warrants review by the Supreme Court.”
Cole also notes that the dissenting opinion of Riley and Griffin leaves open the question of the Board of Regents’ autonomy.
“The election of a president is a specific duty of the Regents in the Constitution. The other five justices did not dispute the merits of that position in their opinion, leaving the opportunity to perhaps raise that issue at another time.”
Several current and former Regents are unanimous in their concern about future presidential searches, particularly as the ruling might apply to the right of a candidate to confidentiality.
Regent Emeritus Thomas A. Roach says the ruling “will have a serious negative impact on the University in the long run. It’s a serious problem. We can’t attract the kind of pool we want.”
Roach participated in the searches that led to the election of Duderstadt and his predecessor, Harold T. Shapiro. In each search, he says, he had discussions with one-half of the candidates and asked each one if they wanted to keep their candidacy private. “Confidentiality was unanimously and strongly held by both internal and external candidates.
“At an institution like the University of Michigan,” Roach says, “the kind of people we want to attract do not want the knowledge that they are even being considered made public, or that they were considered and not chosen.”
In a public school district, Roach notes, public knowledge that an individual was considered for a major administrative post might be considered “a feather in the cap. That’s not true at the university level. The people we seek are doing excellent jobs and are well-liked where they are. The last thing they need is to send a message that they are a candidate at another institution.”
Roach adds that it is “extremely important to amend the law. The Legislature just has to do this. To not [amend the law] causes very serious injury to the University.”
Regents Shirley M. McFee and Laurence B. Deitch agree with Roach that the law should be changed.
“I want to begin a dialogue with the press and the Legislature about ways to amend the law to keep the good portions in effect and allow searches to be conducted in a more effective and thoughtful manner,” Deitch says. “Until that happens, we’ll abide by the law in every respect.”
McFee says that while she “respects the public’s right to know,” she also respects the right of an individual to some degree of privacy.
“A candidate should have a right to privacy, to have an opportunity to explore [job] possibilities without making that interest known. I urge the state Legislature to alter the law to take the right of privacy into consideration.”
Regent Deane Baker says his sense of the ruling is that “the Supreme Court establishes the law as it applies to the University. My impression, by and large, is that it significantly reduces the University’s ability to provide protection of the identity of candidates for the office of president.
“There will be significant changes in the way in which the University recruits a president. The University intends to obey the law; it always has. In the case of this suit, we relied on the advice of counsel. There was no intent to disobey the law.”
With respect to the confidentiality of candidates, Baker says “you only have to look at the circumstances surrounding Michigan State University’s search. The privacy of candidates was compromised and they were terribly treated. I understand 15 seated presidents withdrew. The final candidate was fired by his board in Florida. This is a most serious issue we have to deal with.”
Regent Paul W. Brown was not surprised by the ruling but notes that the 4-3 decision “indicates that there is considerable disagreement as to what the law was. We conducted the search with the advice of counsel. The Supreme Court has now defined the law and provides more guidance.
“It is unfortunate for higher education,” he adds, “that we are not permitted to have confidential personnel actions. The field of candidates will be reduced and in the long run we will have less capable people to choose from.
“In our search, several withdrew when speculation arose about their candidacy. They didn’t want to continue because of the turmoil it would create in their current employment.
“[The ruling] is unfortunate, but if we’re obligated, we’ll do it that way,” Brown says.
