Tuesday, November 21, 2006

UI President Search II

As predicted in Nicholas Johnson, "UI President Search I," November 18, 2006, it looks as if this story will continue to evolve over time. At least there is now reason to have a blog entry updating the story; but that blog entry is still the best source for links to stories and opinion published between November 17 and 21. (There is now also Nicholas Johnson, "UI President Search III," November 22, 2006.)

It might be useful at this point to try to list some of the range of issues raised by these events, and discussed in the media. For now, here are eight, along with links to some additional stories and opinions:

1. There is the shock of the Regents' announcement last Friday (November 17) that after 10 months of searching, and narrowing 150 candidates to 7 and then 4 -- virtually unanimously -- the Board decided to reject all four, disband the search committee and call off the search -- without any indication of what comes next. The offered reason was that the four did not have adequate experience overseeing health sciences programs (notwithstanding that reportedly three of the four did have such experience, and that all medical professionals on the search committee were satisfied on this score). This subject is the primary focus of
Nicholas Johnson, "UI President Search I," November 18, 2006.

2. There is the story of UI faculty and other stakeholders', media, and public reaction to this startling turn of events, which is now taking the form of organized efforts to pass votes of "no confidence" in the Regents by various UI constituencies, calls for intervention by Governor Vilsack and Governor-Elect Culver, and for the removal of one or more Regents from the Board -- which, of course, raises questions as to a governor's power of removal.

3. There is the speculation about just what will be the next steps. The Regents apparently plan to meet after Thanksgiving (perhaps by phone), and have a regular meeting scheduled for Iowa City in mid-December (as the university goes into its holiday break). There is also a credible expression of belief that Michael Gartner has a candidate in mind -- apparently one of the seven, but not of the four -- that the failure of that candidate to make the final four was a factor in the decision to reject all four, and that the final selection of Gartner's preferred choice might be announced at any time.

4. There are questions as to just how abusive, or disrespectful, the Regents' leadership has been of the UI faculty in general and the search committee members in particular.

5. There are the differences of view regarding the Regents-faculty relationship, and the most effective relative role of each in the hiring process. The traditional, past method has been a search led by a faculty committee, the final candidates from which are available to the community in on-campus interviews, with the ultimate selection being made by the Regents. And there is the method used this time, with its impenetrable veil of secrecy at all stages, control by the Regents, no on-campus interviews, and ultimate selection by the Regents -- or perhaps even one Regent.

6. The degree of secrecy raises questions both of law (the "letter" and "spirit" of Iowa's "open meetings" requirements) and propriety. The dispute involves whether the Regents' days' long "closed meeting" was merely a violation of the spirit of the law or a clear violation of the law itself.* [See footnote discussion of the law, below.]

7. There is the issue of the political consequences of this conflict for Governor Vilsack (who is undertaking a race for president of the United States, who appointed the Regents who are the subject of criticism, and who has, so far, kept his distance -- seemingly, therefore, siding with the Regents) and Governor-Elect Culver, who is also keeping his distance, thereby raising questions not only about his interest in, and loyalty to, the University of Iowa, but also his willingness to take the tough positions sometimes required of governors throughout a term beginning next January.

8. Michael Gartner's personality, management style, and past employment history have also been mentioned by some.** [See footnote anecdote, below.]

These issues, and more, are discussed in the media stories and opinion linked from
Nicholas Johnson, "UI President Search I," November 18, 2006, Nicholas Johnson, "UI President Search III," November 22, 2006, and from this blog entry.


* Footnote regarding Iowa's Open Meetings Law. The relevant provisions are:

"1. . . . A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:
. . .
"i. To evaluate the professional competency of an individual whose appointment, hiring, performance or discharge is being considered when necessary to prevent needless and irreparable injury to that individual's reputation and that individual requests a closed session. [emphasis supplied]
. . .
"2. The vote of each member on the question of holding the closed session . . . shall be announced publicly at the open session and entered in the minutes. A governmental body shall not discuss any business during a closed session which does not directly relate to the specific reason announced as justification for the closed session.
. . .
"5. Nothing in this section requires a governmental body to hold a closed session . . .."
Code of Iowa, Sec. 21.5 (2005).

[I am informed by a knowledgeable Iowa lawyer -- I know, because he was a former student of mine -- that the analysis which follows is not that of the Iowa courts. He says the court has interpreted the statutory language in such a way as to give the deciding power to the applicant: if the applicant wants a closed meeting the agency has no option but to close it. If that is, in fact, the court's interpretation I would respectfully suggest it is not the most reasonable interpretation of the "plain meaning" of th words. What the courts rule is, however, "the law," and binding even on law professors.]

N.J. comment [but not a "legal opinion"]: I believe the reference to "necessary to prevent . . . irreparable injury to . . . reputation" is not broad enough to cover routine evaluation of job applicants. I believe the reference to "performance" and "discharge" suggest the purpose is to prevent the kind of damage to reputation that, if the allegations are false, might constitute defamation, false light, or public disclosure of private facts.

I find the controlling language to be: that it is (1) the agency (not the applicant) that (2) "may" (or, presumably therefore, may not; see paragraph 5 ("nothing in his section requires")) close a meeting, (3) if, but only if, two conditions are met: (a) "irreparable injury to reputation" would otherwise result and (b) the applicant requests that it be closed. In other words, the agency cannot -- and is certainly not compelled to -- close a meeting unless "irreparable injury" would otherwise occur, regardless of what the applicant desires. (The agency is also precluded from closing a meeting, as I read it, if the applicant wishes it to be an open meeting.)

So the Board of Regents clearly would have been acting in accord with the statutory language were it to have held applicant interviews in open meetings -- and certainly would have been doing so if it merely released their names.

Does any Regent truly want to argue that the fact someone is being seriously considered as the next president of the University of Iowa is a fact that might cause "irreparable injury to [their] reputation"? One would certainly hope not. And, as I read the statute, if no "irreparable injury" is possible the Board is precluded from having closed sessions -- regardless of the personal preferences of the applicants. Although, as mentioned above, if this is not the way the Iowa courts interpret that language we are, of course, bound by their rulings.

Paragraph 2 expressly forbids the Board from
discussing anything that does not "directly relate to the specific reason announced as justification." If the Board was using the "irreparable injury" justification of 1.i., it would be difficult for it to sustain that burden for all of their discussion over the four days or so -- as the tapes of the meeting will undoubtedly reveal if a law suit ever permits their being reveled. For discussions of procedure, whether to go forward with seven, or four -- or none -- do not even involve the candidates' names, let alone anything that would cause them "irreparable injury." Since those subjects do not "directly relate to the specific reason announced as justification" for closing the meeting, those discussions would seem to have violated the open meetings law.

Moreover, is there not a negative implication to draw from the fact that an applicant is willing to conceal from his or her colleagues the fact they are being considered? Isn't that level of duplicity and secrecy a quality of character one would prefer their administrators not have?

At least Florida, and perhaps other states, require the appointment process, or at least portions of it, to be done "in the sunshine" -- that is, in open meetings. Certainly any applicant ought to be able to make clear to his or her institution that, while happy and proud to be where they are, they believe it is helpful to the institution to be nationally known as one from which other institutions are anxious to recruit. At least the prior process at Iowa, with on-campus interviews of applicants, seems to have worked fairly well judged by their willingness to have their names revealed, and their attractiveness to other national institutions (previous UI presidents have been lured away by Dartmouth, Michigan and Cornell).

The Iowa Code makes reference to disclosing the votes of members regarding going into closed session, but neither permits, nor forbids, coming back into open session thereafter. But it seems to me that a fair reading of the provision is consistent with the practice we followed as board members of the Iowa City Community School District: the board votes to go into closed session, holds the closed session, and goes back into open session (whereupon it reports what it can). Certainly, the legislature cannot have contemplated that "closed meetings" could go on for days, interrupted for substantial periods of time without ever coming back into open session, only to be resumed a day or so later.

And see generally, Nicholas Johnson, "Open Meetings and Closed Minds: Another Road to the Mountaintop,"
53 Drake L. Rev. 11 (2004), and the shorter, Nicholas Johnson, "Open Minds About Open Meetings," Des Moines Register, February 18, 2005.

Footnote regarding Michael Gartner's prior positions.

As it happens, one of the texts I use in Law of Electronic Media features Michael Gartner in one of its notes. Carter, Franklin and Wright, The First Amendment and the Fifth Estate (Foundation Press, 6th ed., 2003), pp. 963-64, n. 9:

It involves "The highly publicized sexual assault charges against William Kennedy Smith . . ." and the media's identification of Patricia Bowman as "the woman who made the charges against him . . .." NBC was one of the media that revealed her identity. Michael Gartner was President, NBC News, at the time. "[O]n NBC Today two months later, Bowman made a personal appeal to [Gartner] to stop the policy of naming alleged rape victims. She called the policy 'frightening' and said disclosure inhibits victims from coming forward. . . ." Gartner believed "the more we tell our viewers, the better informed they'll be in making up their own minds about the issues involved."

Gartner's positions on disclosure involve a rather interesting juxtaposition: It is important and serves a public purpose to reveal the names of rape victims (who will suffer not only an impact on their reputations, but possibly be subject to repeat attacks as a result), but secrecy regarding the names of potential university presidents is sufficiently important to change tradition and risk alienating a university's faculty and other stakeholders and prevent the people of Iowa, and their legislators, from being "informed . . . in making up their own minds about the [individuals] involved."
Additional Media Stories and Opinion:

Editorial, "Shed secrecy in search for university president; Regents' bungling fuels public distrust," Des Moines Register, November 21, 2006

Michael Gartner, "'Getting their way' means regents are following the law, Gartner says," Des Moines Register Online, November 21, 2006

Erin Jordan, "Adviser: Regents had job finalist in mind; Participants in the search for a new U of I president question the board's reason for rejecting the top 4 picks," Des Moines Register, November 21, 2006

Blog Comments," U of I Presidential Search," Des Moines Register Newsroom Online, November 21, 2006 (as of 7:30 a.m.)

Rod Boshart and Diane Heldt, "Vilsack: 'Take step back' on UI search," The Gazette, November 21, 2006

Editorial, "Regents Should Focus on the Spirit of the Law," Iowa City Press-Citizen, November 21, 2006 [not yet available online]

Brian Morelli, "Fallout continues from Regents' decision; Groups move toward no confidence vote; Vilsack won't step in," Iowa City Press-Citizen, November 21, 2006

Joseph Brisben, "Vilsack Should Fire Gartner et al.," Iowa City Press-Citizen, November 21, 2006 [not yet available online]

Pamela M. Stewart, "Regents Acting Like Dictators," Iowa City Press-Citizen, November 21, 2006 [not yet available online]


K.L. Snow (Diary of a Political Madman), "Tuesday's Reads," November 21, 2006

David Goodner (Straight Out of the Cornfield), "Board of Regents Should be Fired, Replaced With Competent Members," Des Moines Register Young Adult Board Blog, November 21, 2006

State29, "Michael Gartner is a Cranky Guy in a Bow Tie," November 21, 2006
Technorati tags: , , , , , , , , , , , ,

Nicholas Johnson's Main Web Site www.nicholasjohnson.org
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index

1 comment:

Anonymous said...

found your comment re patricia bowman and gartner. today is the 15th anniversary of the day i testified. to me it is just monday, to my daughter, it was a test day, but because of "social scientists" masquerading as journalists/businessman, we were reminded this morning, that today was in fact the 15th anniversary of the day i testified. please have someone explain the relevance to us.