Court rules against U regents

U must release candidate names to five media outlets.

by Molly Moker

In University General Counsel Mark Rotenberg’s eyes, the institution’s degree of authority looks a little different today than it did a week ago.

The Minnesota Supreme Court ruled on Thursday that the Board of Regents broke state public information laws when it decided to select Bob Bruininks confidentially in its 2002 presidential search.

Now, two years later, the court decided the University must release the names of the other candidates.

In a 4-2 decision, the Supreme Court ruled the University’s autonomy did not excuse it from obeying the Minnesota Data Practices Act and Minnesota’s Open Meeting Law, and the University must release the confidential information.

The Minnesota Daily, St. Paul Pioneer Press, Star Tribune, Rochester Post-Bulletin and the Minnesota Joint Media Committee brought the case to the state Supreme Court in February.

Rotenberg said although he is disappointed with the decision, the regents will comply.

“We obviously respect the majority’s decision and we now understand the board’s constitutional authority to be more limited than before last week,” he said.

The ruling applies to limited circumstances and will not impact daily University operations, Rotenberg said.

“Ninety-nine percent of what they do has nothing to

do with this case and of course the rest of the units with the University outside of the Board of Regents are unaffected by this decision completely,” he said.

Rotenberg said the University can petition for a rehearing of the case. He said he hopes to wrap the case up and will know more about future proceedings after meeting with regents later this week.

Star Tribune attorney John Borger, who argued the case on behalf of the five media outlets, said he is glad the issue has been resolved.

“It would be our fervent hope that we never have to get into this type of a fight with the University again with the presidential search process and that they’ll keep it open from this point forward,” he said.

Because the case regarded state law, the University cannot appeal to the U.S. Supreme Court, Borger said.

Candidates’ names will be released in a month at the earliest, Borger said.

Rotenberg said exposing the presidential candidates is not expected to cause controversy.

“Members of the board explained why they wanted Bob to be the president at an open meeting before they voted on his candidacy,” Rotenberg said. “I think our expectation is that people understand why the board chose Dr. Bruininks and are pleased with that choice.”

Rotenberg said releasing the names of the candidates seems trivial now.

“The fact that there are other candidates from a couple years ago that were candidates for the presidency, I don’t know what significance that has for folks, but that’s not up to us,” he said.

The next presidential search will suffer from this decision, Rotenberg said.

“No major research university in the United States that has a choice in the matter chooses to publicly disclose and interview candidates for presidents,” he said. “They all provide a certain degree of confidentiality.”

Patricia Ohlendorf, vice president for institutional relations and legal affairs at the University of Texas-Austin, said the institution is required by state law to release the names of finalists 21 days before the regents make their decision.

Initial interviews and the final decision are made privately, she said.

Ohlendorf said she thinks the University of Texas’ process is fair.

“I think if the names were made public during the early stages it would be a great hindrance; I think many people would not want to be considered,” she said. “But anyone who is willing to be a finalist is completely committed to coming to our campus.”

Yet Ohlendof said candidates have dropped out after becoming finalists because they did not want their names made public.

Also in years past, there have been instances when only one finalist was announced for consideration, Ohlendorf said.

Current University of Texas President Larry Faulkner was one of three finalists when chosen in 1998.

Star Tribune Editor Anders Gyllenhaal said he hopes the decision will also set a precedent for other governing bodies.

“It’s a very important ruling and one that has broader impact for the sense that the University is one of the highest ranking governments in the state and a leader in many ways,” he said.

Many public officials have slipped in following the laws of open government after Sept. 11, Gyllenhaal said.

“An erosion to open government and rulings like this raise the question that says the laws are important and you need to follow them,” he said.

Although the University has not discussed legislative action, Rotenberg said hypothetically it could try to change the state’s legislation or the constitution regarding the public information laws or the University’s autonomy, respectfully.

Rotenberg said if the University were to pursue any type of legislative action, it would be more feasible to change the public information laws.

“While the court’s opinion dealt with a constitutional issue, the outcome of this case could be altered by a statutory amendment to the Open Meeting Law or Data Practices Act, or both,” he said. “So it doesn’t require a constitutional amendment to make changes in the outcome of this case.”

Rotenberg said it is too early to say if there will be any legislative response to the case at this time.