Regents’ meetings to remain closed

Jim Martyka

During the Board of Regents April meetings, which begin today, the University’s public governing body will once again hold closed meetings to discuss University issues with their attorneys.
These closed meetings, which continue to stir controversy at the University, have been contested by various groups, especially faculty members, who claim that since the board is a public body, all of its meetings should also be open.
However, regents and other University officials say that while most of their discussions should be open, sometimes they need to hold private meetings.
“It is necessary for a public institution to hold public meetings,” said Regent Jessica Phillips, a student representative to the board. “But when we are dealing with matters that are attorney-client privilege, it’s important to have closed meetings.”
University officials said these matters can include discussing lawsuits against the University, such as the recent federal ALG lawsuit, as well as receiving advice on how to deal with other legal issues.
By definition, the attorney-client privilege can only be used when discussing legal matters with legal counsel.
The rule governs “communications between a client and his or her attorney that are not subject to disclosure to anybody else when those communications deal with legal advice,” said Mark Rotenberg, the University’s general counsel.
Rotenberg said the regents, who must abide by the Minnesota Open Meeting Law, meet in these private sessions under this privilege, strictly discussing only legal advice about issues surrounding the University.
The open meeting law, commonly referred to as the “sunshine law,” was enacted in Minnesota in 1957. The law contains the presumption that all meetings of public bodies and their committees are open to the public. Regents said they agreed with this concept.
“It’s challenging at times; just with the very nature of some issues, you may want to brainstorm without worrying what it will look like in the press,” said Regent David Metzen. “But overall, I think (the open meeting law) has been good for government.”
However, there are exceptions to the law, one of them being the attorney-client privilege.
Most of the regents’ closed meetings have fallen under this exception.
The content of these closed meetings have also been misunderstood in the past, Rotenberg said.
“In the case of the regents … it will often be a media entity or someone else that will say, ‘you say it’s protected by attorney-client privilege, but we suspect that the regents were not really asking legal advice,’ and that’s not the case,” he said.
Rotenberg said that as the regents’ attorney, he has to make sure they don’t violate this law by discussing anything other than legal advice.
Accusations that the regents indeed were not discussing legal issues came to a head during the tenure reform debate last summer and fall.
Faculty members suspected the regents were meeting in private to discuss tenure revisions, even though the state ordered a freeze on any discussions regarding the tenure code until a union election took place.
Some faculty members still believe these meetings took place. “The regents went through a great deal of trouble to subvert the open-meeting law and in fact got themselves in a great deal of trouble that way,” said Tom Walsh, a professor of physics and astronomy.
But Rotenberg said regents did not violate any law in calling these meetings.
Any discussions between Rotenberg and the regents involving the tenure code or revisions of the code were conducted in public, he said. “Discussion about legal claims having to do with the union organizing campaign or the status quo order were discussed under the attorney-client privilege.”
Phillips said the complaints about these meetings stemmed from tension at the time. “During the tenure discussions, there was some concern … and a lot of that was over legal differences,” she said. “Some attorneys would say these meetings were perfectly legal while others said they didn’t know.”
But Phillips also said general counsel was careful to make sure they only discussed legal advice.
Even after the resolution of the tenure issue, however, these meetings persisted.
University officials said that now the main topic of discussion in these meetings is legal advice on how the regents should deal with lawsuits involving the University, most notably the federal ALG lawsuit.
The $100 million lawsuit, which was filed against the University last December by the U.S Department of Justice, claims the University profited from the sale of the illegal transplant drug ALG. Currently, the two sides are in negotiations designed to settle the suit without going to trial.
Rotenberg said the most recent meetings, scheduled for this afternoon, are meant to update the regents about the negotiations, as well as to ask and answer questions on strategy for how to deal with the lawsuit.
Rotenberg said they will also discuss other cases facing the University.
While controversy over the upcoming meetings isn’t as widespread as it was during the tenure issue, some faculty members have still expressed concern about the content of these meetings.
In reference to the ALG lawsuit, faculty members expressed concern that information about negotiations wasn’t being released.
“I can understand why they would not want to jeopardize negotiations, but if they’re going to offer money to an organization to go away, then we should know how much money and where that money comes from,” said Walsh. “That is something that concerns us all very much.”
Very little information about negotiations has been released to the public.
Even though regents said they felt there are appropriate times to hold closed meetings, such as when discussing cases like the federal lawsuit, most of them stressed the importance of conducting a majority of their meetings in the open.
“The University, just given its size, I think we have to err on the open side rather than the closed,” said Regent David Metzen.
Regent Maureen Reed agreed. “As a public institution, the University must conduct its affairs in the public eye,” she said.
Despite the controversy that surrounds the regents’ closed meetings, Rotenberg said these are a small portion of the total number of attorney-client privileged meetings the general counsel handles.
He said other meetings governed by the privilege — such as University employees seeking general legal advice, direction in handling discrimination issues or help with labor-relations questions — are not generally subject to the open meeting law.
“Despite how it has been perceived,” Rotenberg said, “it is relatively rare that the general counsel meet in private with the regents.”

— Staff Reporter Jessica Steeno contributed to this report.