Thursday, September 10, 2015

For the Record: U of M Alum Marshall Tanick on the U's Penchant for Secrecy

Marshall Tannick earned his J.D. from Stanford Law School with top honors in the Order of the Coif. He graduated Phi Beta Kappa with a B.A. in Journalism from the University of Minnesota.

Marshall, a prominent local attorney, writes in the Pioneer Press:

As the turmoil continues and gets worse at the University of Minnesota regarding former Athletics Director Norwood Teague, one feature that has been overlooked is the faulty manner in which the university selected him. He was chosen in 2012 by President Eric Kaler as the only "finalist" for the $400,000 position. 
The university customarily uses this one-finalist-only process as a means of circumventing public scrutiny under the Minnesota "sunshine" laws, the data practices and open meeting statutes. The institution speciously justifies this opaque practice by citing fears that high-quality candidates will be deterred from applying if their identities are publicly revealed. So, the school shrouds the process in an unnecessary veil of secrecy akin to picking a pope.
But the concern that "sunshine" will repel candidates, as if they were vampires, is an illusion. Many other educational systems around the country -- and in Minnesota, as well -- reveal the names of multiple candidates for major positions, which allow the public to examine their qualifications, rather than disclosing only the sole "finalist" as a fait accompli. Had the university done so with Teague, it may have provided input from those with greater knowledge of his activities and behavior at his prior job in Virginia than the now-discredited search committee was able to discover for more than $100,000 in fees. 
By the way, the man who selected Teague for the position got his job this same way.
President Kaler, like his recent predecessors, also was chosen by the Board of Regents as the only "finalist," as a means of limiting oversight of the selection process.
In addition to improving background checks and other hiring features, the "U" ought to take a look at its penchant for secrecy and the resulting defective process for picking top-level administrators. The institution should fix it with a strong dose of transparency before the next selection proceeds, including Teague's replacement and, perhaps, Kaler's, too.

Marshall H. Tanick, Minneapolis

 The Open Meeting Law is violated on a regular basis at the U of M.  Here are just a few examples:

April 2, 2015 Faculty Consultative Committee closes its meeting for a legislative session update. (The law does not permit closing a meeting of a committee of one public institution to discuss the actions of that public institution with another public institution.)

February 18, 2014 Senate Committee on Finance & Planning closes its meeting to discuss problems with funding for UMD. (The law does not permit closing meetings to discuss the use of public funds and tuition at a public institution.)

December 5, 2013 FCC closes its meeting to discuss the Academic Health Center.

September 21, 2013 FCC conducts its entire annual retreat off the record.

For an analysis of the application of the Open Meeting Law to the U of M see the Postscript on FCC & The Open Meeting Law at the end of New Year's Resolutions for New President (originally posted on the University of Minnesota blogging system UThink, on December 19, 2010. This system is now defunct.)


The memorandum of the U of M general counsel on the Open Meeting Law is included in the September 16, 2010 report of the FCC. The general counsel declares (emphasis added):

A plain reading of the statutory text could indicate an exceptionally broad interpretation of the phrase 'committee . . . of a public body.' However, Minnesota courts, the Commissioner of Administration, and practical constraints functionally limit the reach of the statute to include only committees that have the capacity to transact public business on the part of the public body by making final policy decisions. The committees considered by the courts to be transacting public business are committees of the governing bodies of the public body at the University of Minnesota, this means
committees of the Board of Regents. We are aware of no Minnesota court opinion stating or suggesting that the Open Meeting Law applies to a committee such as the FCC, which is not a committee or subcommittee of the Board of Regents and does not transact business on behalf of the Board.

The general counsel needs to review the statute.

Here is Minn. Stat. 13D.01:

Subdivision 1. In executive branch, local government.

All meetings, including executive sessions, must be open to the public
(a) of a state . . .
(b) of the governing body of a . . . or
(6) other public body;
(c) of any
(1) committee,
(2) subcommittee . . .
of a public body

It is true that the scope of paragraph (b) of Minn. Stat. 13D.01 subd. 1 is limited to meetings of the governing body of a public body. However, paragraph (c) requires that meetings of ANY COMMITTEE of a public body must be open to the public. Unlike paragraph (b), paragraph (c) does NOT limit its scope to a "governing" body.

The general counsel also needs to review the opinion of the Minnesota Supreme Court in Star Tribune Company v.University of Minnesota Board of Regents, 683 N.W.2d 274 (Minn. 2004):

Although we have not used the precise term 'public body' to describe the University, we have used terms that convey the same meaning. . . . 
In fact, the Regents do not contend that the University is not a public body. Rather they argue that the Open Meeting Law does not appy to the Regents because the legislature did not expressly name the Regents as an entity subject to the
requirements of the law. . . . 
Because the 'public body' language of the Open Meeting Law is certainly broad enough to encompass the University, the Regents are in essence arguing there should be an exception to the stated scope of the Open Meeting Law for theUniversity. However, as the court of appeals pointed out, the Open Meeting Law contains express exceptions for meetingsof the commissioner of corrections, state agencies exercising quasijudicial functions involving disciplinary proceedings and'as otherwise expressly provided by statute.' Minn. Stat. 13D.01 subd. 2. The University is not included among those express exceptions. . . . 
Given the broadly inclusive language of the Open Meeting Law, our numerous opinions recognizing the University as a public institution, the failure of the legislature to include the University among other expressly stated exceptions, and our principle of construing the Open Meeting law to favor public access, we hold that the University is subject to the terms of the Open Meeting Law.
Star Tribune Company v. University of Minnesota Board of Regents,
683 N.W.2d at 281(Minn. 2004).

So the University is a "public body" (as that statutory term is applied by the Minnesota Supreme Court), and the FCC as a committee of a public body is subject to paragraph (c) of subdivision 1 of Minn. Stat. 13D.01.

It appears that the FCC needs independent counsel on this point of law.

Michael W. McNabb
University of Minnesota B.A. 1971; J.D. 1974
University of Minnesota Alumni Association life member

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