Internal documents from the University of Minnesota don't show any violations of the state's Open Meeting Law during the school's recent presidential search. But critics say the U's board of regents violated the spirit of the law when they met privately with the final candidate for the job.
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Back in November the University of Minnesota hired Eric Kaler, a provost at Stony Brook University in New York, to be its next president. Kaler takes over this summer.
Kaler seems to have secured the support of most everyone on campus. But as I reported the day after he was hired, that hasn't stopped some from expressing concern about how the process to hire him took place.
The problem; in the final days before Kaler was offered the U's top job, members of the school's board of regents met privately with the candidate.
Any business done by the board of regents, at least when a majority of members is present, is governed by the Minnesota Open Meeting Law. That means the public is supposed to be notified of such meetings and they should remain open to the public.
Friday November 19th, the day after Kaler was hired, Minnesota Public Radio News filed a request under the Minnesota Government Data Practices Act for documents related to the scheduling of the board of regent's meetings, interviews and meals with Kaler.
Last month the U of M handed over 75 pages of documents, mostly agendas and emails.
The documents don't detail any attempts by the university or the board of regents to intentionally skirt the state's Open Meetings Law.
But Jane Kirtley, a professor of media law and ethics at the University of Minnesota believes the board of regents privately interviewed Kaler in meetings that should have been public.
"It's fairly clear they're trying their best to avoid public scrutiny during these critical stages of the search process," Kirtley said.
Documents from the U of M show a November 17th dinner in downtown St. Paul with the Regents and Kaler was considered a "social" get together. Board secretary Ann Cieslak emailed a reminder about the dinner that emphasized that point: "The Wednesday night Board SOCIAL dinner needs to be on the calendar.". Social dinners are not covered by the state's open meetings law.
But Kirtly finds it hard to believe that the board of regents would get together with the man they're considering hiring for the school's top job, and not talk business.
"They are looking for loopholes so they can keep the public out of their fact finding and deliberative process," Kirtley said.
University of Minnesota general counsel Mark Rotenberg maintains that the meal was purely social in nature.
"I was told, and I have no reason to disbelieve this, they invited him to that dinner just because they wanted to kind of get to know him a little better," Rotenberg said. "They wanted to talk about his family, they wanted to get more comfortable with him as a human being."
As long as regents kept the questioning of Kaler on a personal level, and didn't ask him "job interview" types of questions, Rotenberg said there was nothing wrong with the private meal.
"Certainly if they were planning to and did conduct a interview as a board with him or even as a committee of the board, we would call that a meeting of the board under the Open Meeting Law and require it to be noticed and open to the public."
One of the state's foremost experts on open government laws doesn't buy the U's assertion that the regents' meeting with Kaler was a purely social get together.
Don Gemberling is the retired head of the state's Information Policy Analysis Division.
"It's hard to believe that a bunch of people got together in a room to talk to a candidate for a job and they only discussed the weather, the future of the Minnesota Vikings, etc. That defies common sense," Gemberling said.
Another private meeting between Kaler and the regents was actually a series of three one hour meetings, each with three regents in attendance. They were held one after another the day before Kaler was offered the U's top job. Separately the meetings don't contain a majority of members, but strung together they do. In past cases the courts have called those serial meetings, and have been critical of them as a way to get around open meetings laws.
Did the U of M do anything wrong when it set up dinners and private meetings with the man who will be the school's next president? To open government advocates, the private meetings look suspicious, but there's no smoking gun in the documents MPR received in its FOIA request.
There's no letters or emails in the batch of U of M documents that ask "How do we get around the open meetings law?". Of course if someone did pose such a question, they're smart enough not to put it in writing. Or maybe it resides in an email exchange with the U's general counsel, in that case it's protected under attorney/client privilege.
Even if there was an obvious, and documented, intentional effort by the U to weave its way around state meetings laws, the only way it could be proven is in court, through a lawsuit.
In 2004, a the state Supreme Court ruled the U violated Minnesota's Open Meeting Law when it refused to publicize presidential candidates names, and interviewed them in private, during a 2002 presidential search. The ruling came about after several media outlets sued the U of M. Here are a few interesting tidbits that came out of MPR's data request from the University of Minnesota. Another finalist (almost) On November 8th Bill Funk, the president of the search firm hired by the U of M, sent an email to the board of regents. Funk said another candidate (the name has been redacted) " ... can't be announced as a finalist, but remains interested if other candidates withdraw ... she would accept the position if offered." Regent Frobenius wanted more time Regent Frobenius sent an email to board chair Clyde Allen suggesting he'll have the final vote on Kaler delayed to hear more input from the campus before making a final decision. According to Frobenius' email, "All important decisions should be slept on before they are finalized.". Allen's response noted that the candidate (Kaler) was anxious to "get moving on transition and orientation", and that the board should move "with all possible and deliberate speed". Allen also told Frobenius "I know you feel strong about this, but I hope I can count on your support." Champagne and butlers?
It looks like the regents were preparing to celebrate even before the final decision was made to hire Kaler.
An email describing a "tentative" lunch being planned immediately after Kaler's public interview with the board had champagne on the menu.
It doesn't appear to be the expensive stuff (a case of Korbel brut is $143 online, Gloria Ferrer is $175), but one wonders how U of M employees dealing with budget cuts and unpaid furloughs feel about board secretary Ann Cieslak's asking "Will D'amico serve and provide glasses if we buy the champagne? Or do we need to rent glasses and hire Eastcliff butlers to serve it."