Transparency Scrutinized

Lawmakers in some states are seeking more openness and transparency from public university governing boards.

December 1, 2015

How transparent should a public university governing board be?

Politicians in a number of states, who often say they’re responding to concerns from constituents, have been calling for appointed or elected governing boards of their public colleges, universities and systems to be more open, particularly when it comes to public meetings.

“There seems to be little trust in the trustees today,” said Thomas Harnisch, director of state relations at the American Association of State Colleges and Universities. “There are calls for governing board members to show their work and how they came up with the conclusion, instead of just showing up with their outcome.”

Suspicion of public officials is nothing new, but, in the case of board members, it’s ramping up as more and more people are concerned with hotly contested issues like college affordability and presidential compensation, says Michael Poliakoff, vice president of policy at the American Council of Trustees and Alumni, an organization that is often critical of college leaders and supports board activism. “It’s a natural and somewhat tempered response to the failings of the institutions themselves,” he said.

Harnisch says “greater political polarization, contrasting views on the direction of the academy and anxiety over the price of college” have contributed to the increased scrutiny.

For example, tensions between the North Carolina Legislature and the governing board of the state university system have been brewing recently, largely due to issues of openness and transparency.

Legislative leaders have been grumbling about the University of North Carolina Board of Governors meeting in closed session to discuss university leaders’ compensation, and many expressed dissatisfaction with what some felt was a secretive search for the system's next president. Both the search and the raises have been widely criticized by system faculty and staff members, many of whom haven't gotten substantial raises in recent years.

The legislature asked for minutes from the closed session in which 12 of 17 system chancellors received substantial raises. While the board ultimately gave the Legislature the records, some board members said the request was invasive and encroached on the board’s autonomy. Yet one legislative leader, North Carolina Senate leader Phil Berger, told a local newspaper the request was not limited to questioning the salary increases -- the larger issue, he said, is transparency.

“It’s about a more basic thing, and that is the idea of what you do in a closed session,” he told The News & Observer earlier this month. North Carolina's open meetings law permits closed board meetings in a number of cases, including to discuss land acquisitions, legal cases, business deals, employment contracts and public safety issues.

The previous month Berger cosigned a letter, along with the state House of Representatives leader, that cautioned the governing board against trying to circumvent a law passed by the Legislature, but not yet signed by the governor, that would require the full governing board to consider three finalists for the system presidency. Margaret Spellings, the former U.S. education secretary, was selected for the position, and she was the only candidate interviewed by the full board.

“Our concern is not about any candidate for the presidency but rather the process by which at least a few members of the board have utilized that appears to cut against the fundamental notions of transparency and procedural due process,” the letter read.

Meanwhile in Illinois there’s a set of legislative measures on the table aimed at increasing the transparency with which salary decisions and top hires are made at public colleges and universities. One of the half dozen bills on the table requires training for governing board members on open meetings laws.

The legislation comes after the governing board of the College of DuPage gave Robert Breuder a lucrative buyout to end his controversial presidency. The deal was approved in a meeting that was closed to the public, but that legislators say should have been open. The proposed legislation requires things like pay, bonuses and presidential contracts to be discussed in open meetings. Under the current Illinois open meetings law, board meetings may be conducted in closed session if personnel matters -- including appointments and compensation -- investment deals, student records or security matters are discussed.

And in Michigan a lawmaker is pushing for a constitutional amendment that would require public universities to conduct more of their meetings in public. Under existing conditions, only formal meetings where votes are taking place must occur in public. Unlike the meetings of other public bodies in the state, preliminary governing board meetings and committee meetings can be held in closed session ever since a 1999 Michigan Supreme Court ruling gave public universities the green light to skirt the state’s open meetings law. The amendment would change the state Constitution to make the open meetings law apply to university boards.

Yet even the resolution’s sponsor, Martin Howrylak, says it’s unlikely the measure will pass, given it requires a two-thirds majority of the Legislature to even get on the ballot. But, he says, the bill is starting a conversation about board transparency in the state. Michigan has 15 public universities, and all of their governing boards operate with different levels of openness.

For example, the University of Michigan has 10 public board meetings a year where public votes are made, but most of the discussion happens behind closed doors in committee meetings or other private sessions. Meanwhile, 15 minutes away, Eastern Michigan University conducts most of its committee meetings in public session -- although its board members often meet privately before the committee meetings.

“If you want to be a public official you have to either endure or relish in the public comment that comes with that position,” Howrylak said. “However, they’re having these discussions behind closed doors and the public is not invited to participate.”

He added that given concerns about the cost of college and how universities spend their resources, governing boards should voluntarily be open in their decision-making process.

“An absence of information has a tendency to stoke fear and mistrust, so as public officials if we want to have the support of the public it’s advisable to engage the public and be as open and transparent as possible,” he said. “That’s why I can’t understand why some of these boards want to be less transparent than other boards are.”

Yet Dan Hurley, president of the Michigan Association of State Universities, said there’s ample ability for the public to influence board decisions through the mandatory public comment section of public board meetings (although the number of commenters who can participate in the session is often limited). He also said that there’s good reason for the state’s universities to want to deliberate behind closed doors.

“There is a need from a strategic planning perspective for these confidential conversation,” Hurley said. “They're in a global higher education marketplace with major competitors, [and they make] decisions that have major ramifications and a lot at stake, and I think you need to have privacy in a lot of those decisions.”

In other states board meetings have also come under scrutiny. Earlier this year a judge found the University of Washington’s governing board was in violation of the state’s Open Public Meetings Act on 24 separate occasions from 2012 to 2014, after board members discussed business during dinners at the president’s home. Also in the spring, the North Dakota attorney general found the North Dakota State University Development Foundation and Alumni Association board violated open meetings laws when members discussed firing the foundation’s leader in closed session.

And recent presidential searches at the UNC System, the University of Iowa, the University of Delaware and the University of Nebraska have all weathered criticism by faculty and staff for lacking transparency.

Emily Dickens, vice president for public policy with the Association of Governing Boards, says public scrutiny over higher education has increased in recent years, which has in turn led to more scrutiny over the decision-making processes of universities.

“People are looking at salaries, people are looking at what you are paying public employees and the general public has more of an interest in how you select the people who are going to be leading your state universities and colleges,” she said, adding that boards “have to learn how to strategically communicate what their actions are as it relates to actions like having a presidential search or even going into a closed meeting.”

She added that training boards on open meetings procedures is an important step toward making sure boards use closed session allowances correctly. In the past year several states -- including Texas, Illinois, Alabama and Massachusetts -- have considered or passed required training programs for board members.

In some cases legislators, in their demands for greater transparency, have been accused of overreaching and breaching the autonomy of the system’s governing board. In North Carolina, for example, the Board of Governors must cite a legal reason when it goes into closed session, and recent closed meetings have complied with open meetings laws in the state. Yet the closed sessions have still frustrated some lawmakers. Dickens noted how many of North Carolina’s lawmakers have been elected within the last five years -- in 2010 Republicans gained their first majority in both the state House and Senate since the 1800s, and in 2012 their numbers were strengthened to a supermajority.

“You no longer have that institutional knowledge … about the roles, rights and responsibilities of the system, and where the line is between what the Legislature is responsible for and what the board is responsible for,” she said.

Susan Whealler Johnston, AGB’s executive vice president, stressed how legislative interference in public university affairs should be minimal. Laws govern whether meetings can be public or closed, and lawmakers should let universities operate within that framework.

“Everything is tested by the law,” she said. “The larger issue is the need for boards to have the independence they need in order to make informed decisions without excessive oversight or regulation or interference of outside entities within the context of doing the state's work.”

Added Harnisch: “There are trade-offs. If every deliberation between every board member has to be made in a public forum, could that possibly lead to less candor and lower-quality exchanges between board members and ultimately poorer decisions?”


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