Open gov’t advocates challenge closed-door selection

Those who’ve been at the University of Minnesota long enough may be experiencing déjà vu after Friday’s presidential finalist announcement.

The Board of Regents proudly announced Eric Kaler as the only one left in the running for University president — a move that left some cheering and others raising their eyebrows.

It was a similar situation back in 2002, when the regents — after a series of closed-door interviews that eventually landed them on the losing end of a lawsuit — presented Bob Bruininks as the University’s 15th president.

That was presumably to save them from a repeat of the 1996 presidential search, in which Mark Yudof came out as the only finalist after two others dropped out. In that case, the names of the semi-finalists were leaked before the board released them.

John Borger, the Minneapolis attorney who represented five media outlets, including the Minnesota Daily, in the 2002 case alleging that the regents violated the state’s Open Meeting Law and Data Practices Act in their presidential search, said no laws were broken this time.

Assuming the regents really hadn’t interviewed any of the four semi-finalists before choosing Kaler, it was in their power to narrow the search from two — after two candidates declined to be named publicly — to one, Borger said.

The Data Practices Act defines a "finalist" as someone who’s selected to be interviewed by the appointing authority before being selected.

Nothing in the statute requires the regents to name more than one finalist.

Still, to be in the best position to lead, the finalist should have received the full support of the University community and beyond, Borger said.

"I certainly would’ve hoped for a more public process this time around," he said, "especially after the lengthy fight that went on eight years ago."

Whether the candidates have been interviewed turns into "a bit of a semantic game," said Eva von Dassow, an associate professor in the Department of Classical and Near Eastern Studies and a member of the Faculty for the Renewal of Public Education. She said she believes individual regents have "met with" the candidates, they just didn’t refer to the meetings as formal interviews.

During the application process, Regents Chairman Clyde Allen said he and Regents Simmons and Cohen met with candidates to encourage them to stay in the running. He wouldn’t say how many candidates they met with, although it included the four finalists.

"We saw some very good names coming into the pool, and we wanted to be sure they stayed in … it was to be sure they stayed in the pool once we had learned the names from various nominees and applications," Allen said.

Allen also said he had met with candidates to recruit them.

"I had met with some in order to recruit them for the pool and in order [to encourage them] to stay in the pool," Allen said.

Regent Patricia Simmons chaired the Search Advisory Committee, whose members are permitted to meet with candidates.

Jane Kirtley, Silha professor of Media Ethics and Law, said she finds it surprising that after two searches, the regents have been able to identify only a single finalist.

"It raises the question — it’s not proof — but it raises the question of whether that was done in part to avoid the public input," Kirtley said.

Troubles with the public process

Public colleges and universities across the country have long dealt with the issue of finding the best candidates while keeping the process transparent.

Most of the candidates vying for such a spot are already high in the ranks at other universities, and when the public finds out they’re trying to be the president of a different institution, it could look like betrayal.

That’s affected the University’s search twice now, Richard Leppert, a regents professor of cultural studies and comparative literature and member of the Search Advisory Committee charged with narrowing down the candidates, said.

The candidates "have to make a decision whether they want to go public and then jeopardize the position at their own university, which could seriously undercut them if they don’t get the position at Minnesota," Leppert said. There are many ways candidates could be harmed, he said, "and many such people decide it’s not worth it to them playing those risks."

At least 22 states have laws that allow public colleges to keep the names of presidential applicants confidential. Legal cases have also sprung from presidential selections at Georgia State University and the University of Washington.

Nebraska’s attorney general had to order the release of the names of candidates for the University of Nebraska‘s presidential spot in 2004. State law there says candidates must be revealed once they agree to an interview, but university officials said their meetings with candidates were "informal social gatherings," not formal interviews, and they were semifinalists, not finalists, at the time, according to the Chronicle of Higher Education.

Earlier this year, Desdemona Cardoza lost her job as provost of California State University, Los Angeles when it was made public that she applied for provost of California State University at Long Beach, according to the Chronicle.

The cases in which people have been set back after seeking other high-level jobs seem isolated, von Dassow said. Further, when faculty members are considered for positions at other universities, it often boosts their status at their home institution, she said.

"Far from jeopardizing it, it makes us more valuable," von Dassow said. "So we’re perplexed by why it’s so different for people in executive positions. Why should they keep it all ‘hush-hush’ where for us it’s actually an advantage to be known to be under consideration for jobs at other institutions?"

In interviews, members of the Search Advisory Committee said they’re very happy with Kaler as the finalist and defended the board’s decision.

"I would’ve loved for everyone to have seen all the great qualities of the semi-finalists that I was fortunate enough to see and to see how strong our applicant pool was," said Ryan Kennedy, president of the Graduate and Professional Student Assembly, and the only student on the Search Advisory Committee. "In a lot of ways, the Board of Regents’ hands were tied."

Part of being a candidate for president of a public, land-grant institution in Minnesota means accepting that it’s a public process, Kirtley said.

"For me it’s an important test of whether a candidate who might become the president is comfortable with the public scrutiny," she said.

A community left out

For the regents to call Kaler a finalist is "disingenuous," Timothy Brennan, an English professor said.

"It really is the final choice," said Brennan, also a member of Faculty for the Renewal of Public Education.

The faculty and students should’ve been petitioned and actively involved in the process of formulating the criteria by which the president is chosen, he said.

Instead, the regents have now opened a forum for public commentary where students and faculty can e-mail questions to be asked during the public interviews.

"The person’s already been chosen," Brennan said. "It’s a little late for that."

On Friday, the FRPE submitted a list of 10 questions for the University’s presidential candidates, asking the candidates to talk about whether they would support faculty members forming and joining unions and whether they’d support regular faculty evaluations of the administrators, similar to those of faculty members.

"The public has an inherent right to know how its university is being run and how choices are made to run its university," von Dassow said.

Instead, the public is shut out until the last minute and doesn’t get to view or participate in the in the process, von Dassow said.

"[The regents are] within their legal rights to do this, but they simply spring one person upon us and the rest of the process is entirely closed," she said, "and we have nothing but rumors and guesses to go on."

—Luke Feuerherm contributed to this report.