Regents vote not to comply with open meeting law

Brad Unangst

The University’s Board of Regents voted unanimously Monday not to comply with Minnesota’s open meeting law in future meetings regarding the ongoing presidential search process.

The decision follows a search advisory committee’s recommendation of five to seven presidential semifinalists to the board. From that pool, the board plans to identify one to three finalists from which the next president will be chosen.

University General Counsel Mark Rotenberg said the board is not required to comply with the open meeting law because the University and its governing body was created prior to Minnesota’s statehood.

Rotenberg said the University’s charter, while incorporated into the state’s constitution, supersedes state law.

“(The regents are) exercising their constitutional responsibility here to govern the University and a critical part of governing is picking the boss,” he said.

Minnesota Newspaper Association attorney Mark Anfinson, also The Minnesota Daily’s attorney, questioned the legality of the regents’ claims.

Anfinson, who said he is an expert in Minnesota public access laws, said the University cannot pick and choose which state laws it wants to follow, especially given that the institution receives state funding. He said the University has frequently cited the prestatehood argument, but has never been successful in court.

If the presidential interviews are conducted openly by the Board of Regents, the candidates’ names would be made public.

Citing the candidates’ reluctance to continue the process if made public, board members said confidentiality allows for candid debate about candidates.

“With regards to the search, this needs to be confidential, or we will not have a good search and we will not be able to deliver to Minnesotans the best president,” Board of Regents Chairwoman Maureen Reed said.

The decision to close those meetings will allow the full 12-member board to participate in interviewing individual candidates. Under the open meeting law, no more than six regents could meet privately with a candidate.

The issue was first raised at a July board meeting when Regent Frank Berman called the law the “single greatest barrier” to finding qualified presidential candidates. Regents questioned then whether to abide by the law.

Board policy allows regents to suspend its bylaws, including the adoption of the open meeting law, Rotenberg added.

Gary Hill, Society of Professional Journalists Freedom of Information Committee co-chair, said the University is subject to state laws and called the University’s decision “outrageous.”

“You can’t pass a resolution that flies in the face of state law,” Hill said.

Anfinson said the regents could also be violating Minnesota’s Data Practices Act.

According to that law, a finalist for any public job is defined as an individual selected to be interviewed by an appointing body.

With a list of candidates ready to be interviewed by the board – which will appoint the University’s president – the names must be made public, Anfinson said.

“The five to seven (candidates) are, by definition, finalists and therefore public information,” he added.

Anfinson said the decision is legally challengeable and that similar court cases have ruled public entities must abide by the open meeting law.

Once selected by the board, finalists will meet with the University community for input. Following the public discussions, the board will name the next University president. The board hopes to have the process complete by the end of the year.

According to the Minnesota Supreme Court, one of the purposes of the law is to “prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning board decisions or detect improper influences.”