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U president search over, but concerns over openness of process linger

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Fielding questions
Eric Kaler fields questions from the University of Minnesota Board of Regents at the McNamara Alumni Center on the campus of the University of Minnesota in Minneapolis on Thursday, Nov. 18, 2010. Following the interview, Eric Kaler was selected as the next president of the university.
MPR Photo/Nikki Tundel

The search for the next president of the University of Minnesota is over, but there are lingering questions about the openness of the process. 

On Wednesday, small groups of regents questioned Eric Kaler in a series of one-hour meetings that were not open to the public. A day later, the regents offered Kaler the position as president following a public interview. 

Some open government advocates say those private meetings appear to be in violation of the state open meeting law, but university officials say they did nothing wrong. 

State law says that generally when the majority of a public board meets, that constitutes a quorum. The public board then needs to give the public notice and keep the meeting open. 

But University of Minnesota officials say Wednesday morning's meetings, which each included three regents and Kaler, didn't fall under the jurisdiction of that law. 

Clyde Allen, the chair of 12-member Board of Regents, said three regents does not make a quorum. 

"Groups of three are permitted," Allen said. "We are very careful to make sure they're not people on the same committees or anything of that sort. So we followed the law scrupulously on that."

For his part, Allen wanted the regents to have more time to get to know Kaler. 

"Ideally we would have had time to give regents time one on one, give them each an hour," Allen said. "As one regent commented, they had 'dozens and dozens of questions.'"

The meetings sound like official business, particularly if the regents were asking Kaler questions related to the presidential job, said Don Gemberling, the former director of the Information Policy Analysis Division in the state's Department of Administration. 

"Which would normally be the kinds of things that would be asked in a public interview of a finalist," Gemberling said. "So I think that starts indicating that the meetings were serial meetings intending to violate the open meeting law."

Courts have frowned on so-called serial meetings where small groups that don't constitute a quorum themselves, would create a quorum if strung together. 

University of Minnesota professor Jane Kirtley teaches media law and ethics, and said the small meetings seemed to allow the regents to secretly interview Kaler while avoiding provisions of the open meetings law. 

"The courts have looked very sharply at subterfuges to avoid that, and one of them is to have small meetings with smaller than quorum-sized groups," she said. "If its done as a way to avoid the open meeting law requirements, than it's a violation of the law." 

But the university's head attorney, Mark Rotenberg, said the regents' private meetings did not violate the law, because regents didn't make any decisions in the meetings. 

"The most important feature of this whole thing is that they didn't do any university business," Rotenberg said. "They weren't discussing among themselves: How do they feel about this candidate? Are they prepared to vote for this candidate? Would like they like to have another candidate?"

The regents private meetings with Kaler are just the latest concern by some on the university's faculty and in the public, that this presidential search was entirely too secret. 

Of four semifinalists, Kaler was the only finalist publicly named. And while Kaler is being welcomed by most everyone at the university, there's concern the public doesn't know how he stacked up against the competition. 

Art Hughes, secretary of Minnesota's chapter of the Society of Professional Journalists and a member of the Minnesota Coalition on Government Information, said both organizations are concerned about the nature of the University of Minnesota's presidential search. 

"We're in a situation now where they're trying harder and harder and parsing down sections of the law finer and finer," he said. "I'm not convinced this won't still get them into trouble." 

If anyone, or any group, wants to challenge the university's private meetings with presidential candidate Kaler, the only way to do it is through a lawsuit. There's no word yet if any organizations are prepared to do that.