ACTA is an independent, non-profit organization committed to academic freedom, excellence, and accountability at America's colleges and universities.

ACTA is an independent, non-profit organization committed to academic freedom, excellence, and accountability at America's colleges and universities.

ACTA is an independent, non-profit organization committed to academic freedom, excellence, and accountability at America's colleges and universities.

In the hunt for University of Minnesota’s next president, transparency comes under real scrutiny

University says contenders for president need privacy.

The Star Tribune
November 5, 2018 by Mila Koumpilova

Lone finalists, closed-door interviews and a lawsuit that went all the way to the Minnesota Supreme Court — that’s the University of Minnesota’s checkered track record with openness during recent presidential searches.

University critics argue that the U has favored candidate privacy in trying to strike a balance between transparency and confidentiality. In 2004, the state Supreme Court found university regents broke the law in interviewing finalists for the presidency in private. Six years later, the U named only one finalist, Eric Kaler, and hosted closed-door meetings with small groups of regents.

As the U searches for Kaler’s replacement this fall, faculty and others have urged a more open process, including bringing in multiple finalists. Officials balk at making such a commitment. But they’ve pledged to hew to state open records and meeting laws, stressing that shielding the privacy of contenders is key for a successful search.

“We’ve learned from history, and we’ll go forward in a legally appropriate manner,” David McMillan, the board chair, said in recent public meeting.

Some faculty and attorneys say the U must honor the spirit, not just the letter, of the law in its search for a new president of Minnesota’s flagship university, which has close to 50,000 students and a nearly $4 billion annual budget.

“With transparency, you get greater confidence from the public and university stakeholders, and more buy-in from candidates,” said John Borger, a retired attorney who argued the 2004 Supreme Court case.

Nationally, advocates have decried the steps public universities take to guard candidate confidentiality and blamed search consultants, saying that secrecy lets them readily recycle candidates rejected by former clients. But consultants and officials point to recent high-profile examples of university leaders whose careers were derailed when they applied for other jobs.

The U fielded criticism from faculty and others for its two most recent presidential searches. In 2002, regents said some finalists for the top job balked at taking part in public interviews. To ensure a successful search, they would question them and deliberate in private. In the end, the board appointed interim President Robert Bruininks rather than any of the finalists.

When the Star Tribune and other media took the U to court, officials argued that applying the Open Meeting Law to presidential searches violates the autonomy the Minnesota Constitution grants the regents. The state Supreme Court rejected that argument.

In 2010, the regents got props for picking U alumnus Kaler as a finalist — even as they faced criticism that he was the only one. Before his public interview, regents met with Kaler in groups small enough that closing the meetings did not violate the law.

Clyde Allen, who chaired the Board of Regents at the time, said the criticism was unjustified. Under the Minnesota Government Data Practices Act, applicant identities become public once they are named finalists. Allen recalls that the board checked in with four finalists-to-be on the eve of announcing them.

Two of them wanted assurance they were the leading candidate and dropped out after they didn’t get it, Allen says. State law does not require a governing board to secure candidates’ approval before they are named as finalists. Still, Allen says, “We respected their wishes on it.”

Kaler was a much stronger candidate than the other remaining finalist, and Allen said it would not have been “fair” to name that applicant.

Again, those steps were fair game under the law. But to U media ethics and law professor Jane Kirtley, letting applicants pull out on the cusp of naming them finalists perverts the process. Clearly, regents cannot guarantee them the job at that point, so applicants counting on such a promise are wasting the committee’s and regents’ time. To accommodate them — and deny the public a chance to size up and discuss the finalist pool and its diversity — is “an exercise in absurdity,” she said.

Nationally, universities have placed a growing emphasis on protecting the confidentiality of would-be presidents. Jim Finkelstein, a professor emeritus at George Mason University who studies presidential searches, says more are yielding a single finalist. He points to nondisclosure agreements for committee members that threaten loss of tenure and criminal prosecution, as well as the use of campus police to cordon off candidate interview sites.

Finkelstein argues private search firms have sold campuses “a bill of goods” with little evidence. Confidential searches put the interests of candidates and search firms over those of universities, Finkelstein argues: “In a public institution, that seems to me to be a breach of the public’s trust.”

At the American Council of Trustees and Alumni, Michael Poliakoff, the group’s president, says major institutions in states such as Florida, where state law makes all applications public, have enlisted distinguished leaders, such as Frank Brogan, the former State University System of Florida chancellor.

Search consultants counter that confidentiality is key to recruit higher-caliber contenders. The go-to cautionary tale is former University of Akron President Matthew Wilson, who announced this year he would step down weeks after losing a bid to become president of the University of Central Florida. He was Akron’s permanent president for only 16 months.

Job-hopping presidents can complicate efforts to line up state funding and alienate private donors. Jan Greenwood, a veteran search consultant in Washington, D.C., says one recent university client kept the process confidential until announcing its hire and interviewed 17 presidents. Another held an open search and had only one president from a much smaller institution in its finalist pool. “There’s a real mentality of you can’t love me today and look at other quarters tomorrow,” she said.

U officials say the state’s Government Data Practices Act strikes a good balance: a private process in the early stages, followed by a public announcement and interviews with finalists. They don’t anticipate any notable changes since the 2010 process.

Once again, regents who do not serve on the search committee won’t have access to information about applications until after it recommends three or four finalists.

Poliakoff says his group champions granting all members access to applications as they come in. He said waiting to engage the full governing board until the final stage can lead to a failed search like the one this year at the Minnesota State system, where the board rejected all finalists.

State law does not preclude regents from accessing applicant information privately, says Don Gemberling, once the state’s lead data practices official. “This stops regents from fully and meaningfully participating in the most important decision they have to make,” he said.

But McMillan, the board chair, says the approach is simply about allowing a search committee of faculty, students, alumni and others to do its work independently and efficiently.

On the eve of the search launch, faculty leadership called on the U to bring in multiple finalists, release data on the demographics of applicants and refuse to appoint a president not recommended by the search committee.

The U’s board office said it would not speculate on the number of finalists. Rod McDavis at AGB Search, the U’s consultant, said his team tells prospective candidates that their names will become public if regents decide to interview them.

Kirtley said giving the campus community time to meet and weigh in on finalists is especially important because the U is moving at a brisk pace.

“When you couple speed with secrecy,” she said, “you have the potential for disaster.”