Tuesday, December 26, 2006

UI President Search XVIII - Dec. 26-31

Revised and updated, Dec. 26, 9:00 a.m., 9:45 a.m.; Dec. 27, 10:00 a.m.; Dec. 28, 8:15 a.m.; Dec. 29, 11:45 a.m.; Dec. 30, 10:30 a.m.; Dec. 31, 9:45 a.m.

It turned out there was much more to report and comment upon this week than when, on Dec. 26, I wrote here: "I'm assuming there will be relatively little news on the UI presidential search front during this week, but what there is will be here."

EXTRA (Dec. 26): Meanwhile we have a post-holiday gift for you this morning with Bob Patton's editorial cartoons; and note that the "References" section at the bottom of Nicholas Johnson, "UI President Search XVII - Dec. 18-25," December 21, 2006 (and updated thereafter) now contains one of the more complete collections of links to the full text of the documents related to the search (a number of which are hard to find elsewhere) and other related resources. (As additional basic documents are found they will probably be linked from there rather than whatever is the then current blog entry.)

EXTRA (Dec. 27): Autry Includes Gartner in Book Regarding "Right Decisions" and "Self Respect"; Links Added to Overlooked Earlier Stories

EXTRA (Dec. 28): This Morning's Commentary: Setting the Record Straight, Johnson Replies to Register Letter Writer

EXTRA (Dec. 29): Culver Asks Recruiters to Find Names of "Wise" Potential New Regents; Dean Johnsen Happy With Gartner-Dictated Presidential Search; UI Continues Secrecy Policy With Public Records; New President to be Announced (But Not Unveiled) in October 2007

EXTRA (Dec. 30): UI and Press-Citizen Debate: "What's a 'Public Record"; Gartner to Press-Citizen: "If It Weren't for the Honor I'd Rather Walk"; Being a Regent is Never Having to Say You're Sorry; and Secrecy and Speculation

EXTRA (Dec. 31): Happier New Year; Gartner Gazette's Gomer; Regents' Wreckage Press-Citizen's Story of the Year, and David Goodner's Top Choice

[Note: If you're new to this blog, and interested in the whole UI President Search story, these blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006. For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last entry containing the summary of prior entries (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006. My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006. And the fullest collection of basic documents related to the search is contained at the bottom of that blog entry under "References" in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter).]

Commentary - Dec. 26 - "Patton's Pad"

Just as some of the more insightful commentary about the news -- and the mainstream media -- is found on Jon Stewart's "The Daily Show," so it is that some of the best editorial commentary is found, not in the columns and editorials, but in the editorial cartoons.

And one of the best collections of editorial cartoons regarding the UI presidential search has come from the pen of Press-Citizen graphic artist and editorial cartoonist, Bob Patton.

I'm about to describe five he's done since November 28 on this subject, show you one of them, and then give you a link to his Web site where all are displayed. (So why describe them? Because you may not make it to the site, and this will give you a clue as to which ones to look for.)

In chronological order:

Nov. 28 (as a result of a "caption contest"): Governor Vilsack is standing between two conference tables, behind which are the members of the Board of Regents. They are all holding hands. Vilsack is saying, "OK, let's hold hands, close our eyes, and ask ourselves: 'Who would Wellmark want us to pick?'"

Dec. 8 ("All this, and she's a Hawkeye Fan, Too! . . ."):
Two guys, one labeled "Regents" and the other "UI" (who holds a sheet of paper) are talking. In the first three panels UI is saying, ". . . I'm telling ya, this is the perfect candidate for President of the University of Iowa!" ". . . A Ph.D. with the strong background in health you wanted . . . a devoted fundraiser . . ." "Who's well-connected with U.I. and is popular with the faculty and staff!" To which "Regents" responds in the last panel: ". . .But didn't we fire Mary Gilchrist as head of the Hygienic Lab?" And UI replies, "An added plus! We don't have to pay her moving expenses!"

Dec. 12 ("Minority Retort"; in response to Regent Wahlert's quoted assertion that the only persons concerned about the Regents' statements and behavior are part of a vocal "radical minority"): Regent Wahlert, dressed as Marie Antoinette, and labeled as "Marie Ant-Wahlert," is holding a sign saying "Academic Freedom, Schmacademic Freedom," as she says ". . . Let the RADICAL MINORITY eat cake!"

Dec. 15 ("'Twas Beauty (and No-Confidence Votes. . .)"): Kong (who has somehow managed to tie a bow tie and is labeled "Regents") has climbed Old Capitol and is holding on by means of the flag pole atop the dome. Fighter planes are coming at him in an attempt to save the University. They are labeled "Faculty Senate" and "Johnson County Democrats."

Dec. 20 ("Wishful Thinking"): Four locals, and one labeled "Gartner" are standing in the "Meet Santa" line, with bubbles representing what they're thinking about asking from Santa. What does Gartner want? ". . . A New U.I. President . . . and a short leash . . ."

Here's the link to "Patton's Pad."

This morning's Gazette [Mary Sharp, "Top Stories of 2006," The Gazette, December 26, 2006, p. 1B] reports that the fifth most important story of 2006 in the judgment of readers (immediately following 4, the deaths of Iowans in Iraq, and nosing out 6, Touch Play machines) is:

"5. UI president
"University of Iowa President David Skorton leaves for Cornell University, and the search for his successor dissolves in confusion and anger after regents reject four candidates recommended by a search committee. The search starts anew in 2007."

A caption under a picture of Skorton says, "Finding his replacement has proven difficult." What a typo! As I wrote, in effect, in "Commentary - Dec. 24: David Skorton" (Nicholas Johnson, "UI President Search XVII - Dec. 21-25," December 21, 2006 (and updated thereafter)), it's finding his successor that has proven difficult, finding his replacement, alas, is going to continue to be impossible.

As the Daily Iowan editorialized at the beginning of this month ("with luck the UI will have a president by the end of finals week"), after describing the qualities the editorial board wanted in the next president, "We [should] point out that our ideal candidate closely resembles Skorton. Indeed, this presidential search should not even be necessary." ["Next UI President Must Engage Students," linked below.]

Commentary - Dec. 27

"Additions to Links." These, now 18, blog entries regarding the UI President Search are the product of one person (me), otherwise employed, and operating without staff. Thus, it is inevitable that the effort to provide links to all media stories, editorials, blog entries, and basic references will occasionally have omissions (or duplications) and errors. The new section, "Additions to Links," contains some items I've recently uncovered or had brought to my attention. If you know of others, please do let me know. [Nothing is deliberately omitted except for repetitive stories, such as AP or unoriginal TV stories, for which the lengthiest original story is included.]

Autry and Gartner. When Jim Autry wrote in defense of Michael Gartner a reader responded with some information about their relationship.
James A. Autry, "Localized Storm Front Triggers Iowa City Squalls," Des Moines Register, December 24, 2006 (with reader response). We now have more on the subject.

James A. Autry and Peter Roy have published an e-book this month (December) entitled The Book of Hard Choices: How to Make the Right Decisions at Work and Keep Your Self Respect (New York: Random House, 2006), available from http://www.fictionwise.com/ebooks/ebook42683.htm.

The description says "James Autry and Peter Roy, experienced executives themselves, interviewed numerous leaders about the tough decisions they've made on the job. They spoke with people like former Starbucks president Howard Behar, Iowa Cubs owner Michael Gartner, and Governor Tom Vilsack of Iowa . . ." (and others).

I haven't read the book, but based on Autry's column, one would guess that he believes Michael Gartner has made the "right decisions at work" notwithstanding others' judgment that in the process Gartner lost his "self respect." It would be interesting to see if the referenced "tough decisions" evaluated for Gartner involve merely which pitchers to put in the game, or whether there is also a discussion of Gartner's Board of Regents' decisions -- and behavior.

Commentary - Dec. 28: Setting the Record Straight

There are a couple of letters to the editor in the Register this morning, linked below, one of which I thought required a response, reproduced below (and posted at the Register's online site as a comment following the letter).

First, the letter; then my response:

# # #
Employees aren't in charge

December 28, 2006

It's no big surprise that the faculty at the University of Iowa would like to lead in the selection process of their new president. While the professors attempt to make a case for this change, it makes no sense to this reader. Most any person outside of the academic community knows that the employees do not hire the boss.

The university is a business and should be run like one. Let regents President Michael Gartner, along with the Board of Regents, do his thankless job; let the professors go back to work doing their job; and keep the 2007 Iowa Legislature out of the picture.

Stu Bassman,

# # #

PostPosted: Thu Dec 28, 2006 7:44 am Post subject:

"Shared Governance" and Creativity

The false assertions regarding academic governance in Stu Bassman's letter are, nonetheless, certainly understandable, and in all probability not his fault.

But the issues are so important to the future of Iowa that his assertions deserve a respectful response.

Among the Regents, UI president, football coach and quarterback, who will "lead" the Hawkeye athletic program, including the selection and execution of plays in the Alamo Bowl this weekend? What is the "job" of each? The reality is that it is not "the job" of any one to the exclusion of all the others; each has a measure of responsibility for the Hawkeyes' athletic program.

Nationally, since 1920 the concept of "shared governance" between university faculties and their governing bodies (including the selection of university presidents) has been formalized in principles approved by the national associations of both professors and governing bodies.

This "shared governance" approach has produced recent UI presidents internationally recognized for their academic leadership, and hired away at two-to-three times their UI salaries by some of the most prestigious universities in the nation. Thus, it is not that "the professors attempt to make a case for this change." The professors were making a case (and persuasively in my opinion) for sticking with a UI and national traditional practice that has produced an extraordinarily successful track record. It is the Regents who failed to make a case for their proposed change, made it anyway, and thereby produced the Katrina-like chaos that has followed in their wake.

It is true that "Most any person outside of the academic community knows that the employees do not hire the boss." What that fails to make clear, however, is that those inside the academic community also fully well know that. While it's not clear what "lead in the selection process" precisely means, I know of no professor who does not understand that it is the Regents who "hire the boss," not the "employees." Indeed, as UI Faculty Senate President Shelly Kurtz started his statement in support of the Faculty Senate's 62-1 "no confidence" vote, "Let me begin by emphasizing that the Faculty Senate fully recognizes that the Regents have the statutory responsibility to select our next president."

Of course, both Michael Gartner and the faculty should "do their jobs." The issue is: what are those jobs? How do they relate one to the other? What kind of governance model might be designed that would best recognize both the legal responsibilities of the Regents and the "shared governance" responsibilities of the faculty? (Reflect again on the roles of the UI president, football coach, and quarterback.) Unfortunately, there is no detailed governance model in place at this time. And the changes the Regents would like to bring about have not yet (according to Gartner) been thought through and articulated.

What does it mean to say that "the university is a business and should be run like one"? Clearly, there are many business principles and practices -- such as budgeting, human relations, marketing techniques, or management information systems -- that are universally applicable to for-profits and non-profits alike, including the smallest Iowa town's city council, the churches and other non-profit organizations we work with, and the global "non-governmental organizations" or NGOs. No doubt about that.

But even for-profit businesses recognize that in any business -- especially one dependent upon well-educated, creative personnel -- 19th Century, top-down, authoritarian, hierarchal, "cracking the whip" management is counter-productive. It just doesn't work. It's not profitable. Creative persons and skilled labor can easily find work elsewhere, and will. "Retention" needs to be a top corporate goal.

And that's why a walk through the offices of groups in a creative advertising agency, advanced weapons systems design, computer software and videogame suppliers, composers, writers, or comedy teams for TV shows, leave the three-piece-suit, buttoned-down executives shaking their heads. How is it that those billion-dollar ideas come from the ping pong tables, empty pizza boxes and coffee cups, of individuals in shorts, sprouting a three-day-growth of beard, as likely to be working at 3:00 a.m. as 3:00 p.m.? But they do. So the wisest executives, in the most profitable creative firms, practice "shared governance" -- if, indeed, there is any "governance" of such individuals at all.

By contrast, many university professors look remarkably corporate. But like their for-profit-sector former students, those faculty members are also in the creative business. And wise academic administrators, and governing bodies, know they need to be treated accordingly. So, OK, let's run the University of Iowa like a business; but let's make sure we know what business it's in.

[If you're interested in learning more about UI's governance and presidential search, The Chronicle of Higher Education says that the blog, FromDC2Iowa.blogspot.com, has "one of the most comprehensive analyses of the controversy" -- as well as links to virtually all of the stories, editorials, columns, and basic reference documents.]
For additional information: www.nicholasjohnson.org and FromDC2Iowa.blogspot.com

# # #

Commentary - Dec. 29: Culver's Search for "Wise" Regents; Gartner Dictates New Presidential Search; UI Sticks by Secrecy; UI President to be Announced (But Not Revealed) in October

Culver Seeks Wise Men for Regents

Governor-Elect Chet Culver has a lot of appointments to make, and he's said he wants to appoint the wisest Iowans he can find. Three or four of the appointments involve vacancies on the Board of Regents in early 2007. Like most newly elected governors, Culver has a recruitment team to help him find qualified candidates.

As luck would have it, Hallmark was there to record the moment when the two women on Governor-Elect Culver's staff who are responsible for Regents appointments, but who may have misunderstood Culver's request, met to discuss the possibilities.

[This image represents a portion of a card in the Hallmark Saturdays series ("The casual way to connect from Hallmark") which is copyright by Hallmark. It is reproduced here as a matter of "fair use" for non-commercial, educational, comment and parody purposes only. Any other use may require advance permission from Hallmark; see http://www.hallmark.com.]

But seriously, folks . . .

Gartner Meets Privately With Dean Johnsen: Search Committee Size, Members, Selection Date to be Regents' Call; Delay to Continue; Details Remain Undisclosed

The more things change the more they remain the same -- as Diane Heldt reports in this morning's Gazette, linked below.

Apparently the members of the Board of Regents are still willing to let Michael Gartner run the show unilaterally, without involving them, without group process, and in secret.

Is that legal? Absolutely. Does it violate the open meetings law? No. Are the Regents allowed to totally dominate the search process? Yes.

Once again, the issue is not "who's running the university?" (Although there is an issue as to whether the answer is "The Regents" or "One Regent.") The issue is, as suggested above, the need for wisdom: openness, collegiality, cooperation, communication, and sound, "business-like" management.

1. The perpetuation of the casual approach to delay. Institutions need CEOs. Boards have the responsibility to find them and put them in place. It was one thing for the Regents to be casual about finding Skorton's successor while he was still on the job, last spring, and the UI still had a president, even if a lame duck. It was a little less responsible to continue the delay throughout the summer and fall, while the University was functioning with an interim president. It has been (in my opinion) absolutely indefensible for them to continue their casual approach to this, their primary responsibility, following their rejection of the four finalists Nov. 17 -- without regard to how one feels about the propriety of that action. Indeed, they said on that occasion they didn't know what they were going to do next or when they would decide what they would do. I believe they should have gone into emergency session and stayed there until they decided how they were going to clean up the mess they had made. There is no reason why, if a second search was what they wanted, that the second search committee could not have been in place by Dec. 1.

This attitude continues. When will the search committee be named? Heldt reports, "Their [the regents] next regular meeting is Feb. 6-7 in Ames, but the regents might hold a special meeting in January to deal with the search, he [Dean Johnsen] said." Note that (a) Gartner is not even prepared to say when the members will be chosen, (b) it could be as late as February, and (c) we're just talking about the selection of the search committee members -- not meetings of the search committee, not the search for presidential candidates, not the work of the committee.

2. Regents to determine size, membership of search committee. One can't blame Dean Johnsen for this. He's caught in the middle. The Regents have the power, and Gartner's selected Dean Johnsen to facilitate it for them. What's a dean supposed to do? To borrow a lyric from a song in the musical "Oklahoma!," "I Can't Say 'No,'" "Whut you goin' to do when he talks that way,
Spit in his eye?"

But I thought a part of the purpose of this second search was to heal things, to involve the UI community, and to have a search committee with no regents on it. No one's confused: the ultimate selection of the next UI president rests, and rests solely, with the regents. But this is the search committee! If some of the regents would be more comfortable eliminating the UI community entirely from this process -- in violation of over 85 years of a national, and UI, commitment to "shared governance" in the selection of UI presidents -- why not just come right out and do it directly? Why beat around the bush?

Don't the Regents even trust the UI community in general, and Dean Johnsen in particular, to select the members of a search committee, to determine how many are necessary to ensure that all the hundreds of programs and projects of this very large institution are represented, and to decide when they will be chosen and start work? How much additional direction and control of the search process will the Regents in general (or has Gartner, in particular, already) provide the committee?

3. Secret, one-on-one, micro-managing. Can the President of the Board of Regents talk in secret to any UI employee he wants to, any time he wants to, about any subject he wants to without violating the law? Absolutely -- with very few exceptions. Again, the questions are not whether it is legal; it is. (a) One question is whether it is good board governance practice, and another involves (b) our current conditions.

Good board governance policy mandates that (a) Boards (of any kind, including Regents) are most properly concerned with policy, not day-to-day operations, (b) Boards relationships with CEOs, and others at their institution, are the result of action by the entire board, not individual members thereof, and (c) when potential Board action is being deliberated, that meeting should be open to the public and media. Gartner's Wednesday meeting with Dean Johnsen violates not one, but all, of these principles.

The Governor-Elect has called for more openness, more compliance with the spirit of the open meetings law, in general -- and in particular with regard to the Regents. Some legislators -- and even regents -- agree. Many papers' editorial boards have criticized Regents' secrecy; one paper is even in litigation over these issues. Many of those Iowans following these issues agree. Much of the suspicion, speculation and soured relations between the UI community and the Regents involves secrecy. So why on earth would Gartner want to poke a stick into that wasp nest, now, of all times?

If the Regents want to micro-manage the search committee -- which they have the legal right to do, however counterproductive it may be -- let them do it in a meeting at which all the Regents are present, a meeting open to the public and media, a meeting at which all who care can know of the exchange between Gartner and Johnsen. (I would simply note in this connection that UI Faculty Senate President Shelly Kurtz has offered to bring faculty from each of the Regents' institutions to such a meeting for the purpose of sharing the pros and cons of past presidential search procedures. That gracious proposal was turned down cold by the Regents; so cold, in fact, that they refused to be personally involved even in its rejection -- they handed that task off to their staff director).
UI Sticks by Secrecy

Both Erin Jordan ("UI Refuses to Release Presidential Search E-Mails," linked below) and Diane Heldt ("More Documents Released in UI Presidential Search," also linked below) addressed a recent public records request for John Colloton's search-related e-mails. But as you can tell from the headlines, they took a little different tack on the story.

John Colloton served in UI hospital administration roles from 1958 through 2000 -- 42 years. For 23 of those years he was the hospital's director. For the past five years he has been a member of the board of directors of Wellmark. He currently has an office in the hospital which he regularly uses, phone, email account and a personal ($50,000-plus) secretary -- all of which are provided at UI expense. But he does not, personally, draw a salary. Are his emails to major players in the UI presidential search "public records"? The University -- after delaying its response beyond the statutory deadline -- says "no," relying on an Iowa Attorney General's ruling.

I like John Colloton, and I'm not going to undertake another analysis of the Iowa open meetings and public records laws. All I'll say is that the reason this would make a good final exam question in my Cyberspace Law Seminar is because there sure are some strong arguments one could make in opposition to that Iowa Attorney General's ruling.

UI's New, Secret President to be Announced (But Not Unveiled) in October 2007

Ken Fuson, who tells us that his "Annual Fearless Predictions" are "much anticipated" (certainly by me), has somehow found a mole inside the Board of Regents who was willing to reveal to him their plans regarding the next UI president. As Fuson reports in this morning's Register (Ken Fuson, "Fuson's '07 Picks: Will Pundit Perform Prediction Perfection?" Des Moines Register, December 29, 2006), the prediction for October is that:

"The Iowa Board of Regents announces a new president for the University of Iowa, but refuses to identify who it is. 'This is the only way we could get someone of this caliber,' the regents said in a news release. Worried faculty and students call for a no-confidence vote when the mystery president appears on campus wearing the Jason mask from 'Friday the 13th.'"

Commentary - Dec. 30: UI-PC Spar Over "Public Records;" Gartner Would Rather Walk; Regents Never Have to Say They're Sorry; Secrecy and Speculation

Public Records

Regardless of whether a court would find his analysis correct, I think the Press-Citizen's Jim Lewers has put his finger on the relevant language, as quoted in the Press-Citizen's story this morning, linked below.

Iowa Code Sec. 22.1 provides the following definition of "public records": "3. As used in this chapter, 'public records' includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state . . .."

The Press-Citizen reports that the UI's legal support for its secrecy claim regarding Colloton's e-mails was that he "does not have any public duties at the university and his communications do not memorialize the discharge of any official functions."

So we're left with questions of both fact and law.

The legal question (in my opinion, off the top of my head, without having read any cases or done any other legal research or having read the Attorney General's opinion) turns on the meaning of the comma after the word "medium."

A "medium" would include the hard drive on a computer or network server or tape or other backup system for either.

(a) If the Iowa legislature intended to make the decisive factor (in deciding what records in public buildings are, and are not, "public records") a function of whether the medium in which they are embedded is one "belonging to this state," then any and all writing stored on facilities owned by the University -- regardless of how personal, and regardless of the author -- will be "public records."

(b) If, however, the language between the commas is intended to only further define and modify what is and is not a "record" or "document" (as distinguished from a "public record") -- specifically, to include, in addition to documents on paper, those only existing and stored in electronic form -- then one might argue that the decisive factor is not whether the medium (whether paper or hard drives) is "of or belonging to this state," but rather whether the document is "of or belonging to this state."

If the former interpretation, everything on UI computers and backup media is a "public record." If the latter, only documents "belonging to this state" would be public records.

That, of course, would still leave an open question as to the UI's claim (within limits) of what documents, created by those using its facilities, are or are not "of or belonging to this state." My impression (not based on review of UI regulations) is that the University pretty much takes the position that any and everything flowing over, or saved on, its facilities is subject to its monitoring and approval. There are also contractual provisions, I believe, regarding employees' property rights in intellectual property created using university facilities and paid time. So there would be at least an argument that every private email on UI computer facilities -- regardless of who created it -- is "of or belonging to this state."

Thus, under some legal interpretations, it would become relevant whether the Colloton e-mails involved the use of UI facilities. That's a fact question.

What if an employee uses their own, personal laptop computer, and private (non-university) email account? Presumably any official documents created -- if "of or belonging to this state" -- would be "public records" nonetheless, even if created from home and on the hard drive of a privately-owned computer. Certainly this would be true if the laptop was used at work, connected to the UI network via ethernet cable or wi-fi (even though the document was never stored on UI storage media).

Presumably, private documents and e-mail, unrelated to UI business or employment, created at home, on privately-owned equipment, on the employee's own time, and never stored on UI facilities, would not be considered "public records" under any interpretation of the law. However, as it gets closer to the UI -- a private laptop that uses the UI network (but not storage), a UI-owned computer (but a message that is not stored on UI facilities), to a UI computer and a message stored on UI facilities -- the legal issues change.

Gartner Would Rather Walk.

This year Time magazine picked all of us Internet users as its "person of the year." But in past years it chose such persons as Hitler (on the cover six other times), and Stalin (twice).

Following the lead of this granddaddy of the "person of the year" publications, the Iowa City Press-Citizen has decided that it, too, need not limit its nominees for "Person of the Year" to those with a "positive impact on the community."

Thus it is that one of those among the paper's "Bumper Crop of Finalists" was someone it acknowledged was "reviled" and whose "effect on the UI community has been . . . tornado-level chaos." "Even when [this nominee] is the smartest person in a room, he hasn't been smart enough to refrain from pointing out that fact [while] waging a war against the UI faculty, staff and students, and encourag[ing] UI's critics to view academics as people who do little work for exorbitant pay."

The Press-Citizen concludes, "Because [the nominee's] abrasive impact has alienated so many, we hope he resigns his [position]. But we have to acknowledge his ability to make things happen."

Fortunately, the Press-Citizen's Board rejected this finalist, disbanded its search committee, started a second search with a new committee, and approved that search committee's recommendation of Rudolph Juarez as the Press-Citizen's "2006 Person of the Year."

There's no record of Hitler and Stalin ever complaining about being selected, but "WWGD"? ("What would Gartner Do?" That's right, the "G" is for "Gartner" not "God.") I would imagine that Gartner -- upon being informed of the Press-Citizen's consideration of him for its prestigious "Person of the Year" recognition, but also informed of its description of his qualifying characteristics -- might borrow a line from Mark Twain on contemplation of being tarred, feathered and run out of town on a rail, "if it weren't for the honor and glory of the thing, I'd just as soon walk."

Now that's something that would take him longer to get from Ames to Iowa City than Wahlert's private plane.

Being a Regent is Never Having to Say You're Sorry

Have you ever wondered why Michael Gartner has never uttered a recorded word of recognition that he might have played a small part -- just a tiny little small part -- in creating the problems surrounding the Regents-UI relationship? Or why Governor Vilsack insists on "staying the course" with his Regents President? Could it be that they, like President Bush, believe it's inappropriate for anyone in such a powerful position to admit mistakes or say they're sorry? Or maybe, even given Gartner's extraordinary ability as a writer, he can't quite find the words.

Whatever the reason, I came upon the following speech the other day and thought I'd offer it up as an example they might reflect upon, or even use to model their own remarks. It's sort of a "Happy New Year" speech, so it's timely. I'm sure the author wouldn't mind if either of them used it word for word. Aside from changing the references to "Iowa," and the omissions, it's pretty much as the author delivered it.

Can you guess who it was?

# # #

Ladies and gentlemen, it's great to be back.

What a difference a year makes - what happened?

People recently have said to me, "I bet you wish you were back in the . . . business?"

I say, "No, not for a minute."

This is still the best job I've ever had. It's an honor to serve the people of Iowa and a joy to serve the people of Iowa and to stand here with you at the start of this new year.

I've thought a lot about the last year and the mistakes I made and the lessons I've learned.

Now it's true that I was in too much of a hurry. I didn't hear the majority of Iowans when they were telling me they didn't like the search process. I barreled ahead anyway when I should have listened.

I have absorbed my defeat and I have learned my lesson. And the people, who always have the last word, sent a clear message -- cut the warfare, cool the rhetoric, find common ground and fix the problems together. So to my fellow Iowans, I say -- message received.

I haven't for a moment doubted our fundamental agenda -- . . . to prepare our state for the extraordinary changes to come.

So, as we begin the new year, I stand before you here tonight happy, hopeful and wiser. And I'm confident that Iowa has the innovative spirit to address the challenges we face here at home and as part of a dynamic global economy.

We made unequalled investments in education -- a record of 50 billion dollars this year.

And we made our schools healthier by becoming the only state in the union to ban sodas and junk food from our schools. . . .

All of which brings me to tonight.

Over the years, some remarkable governors and some remarkable men and women who have served on the Board of Regents have addressed the needs of the people. . . .

In the face of massive change and huge challenges, they built the foundation of our state's prosperity. They built the schools and the universities that became the envy of the world.

. . ."

Can you imagine an elected or appointed official saying anything like that? Well, at least one did. Can you guess who it was?

These remarks are taken, for the most part word for word, from California Governor Arnold Schwarzenegger's January 2006 "State of the State Speech" to the California Legislature, January 5, 2006 -- following which his poll numbers -- that dropped from 57% to 34% approval in one year -- reversed direction and he handily won re-election by roughly 1.5 million votes.

Power may corrupt, but humility and apology can empower. Just a thought.

Secrecy and Speculation

A blog entry in "Open Country" (Maria Houser Conzemius, "UI Advised Not to Release E-Mails, Dec. 29, linked below) prompted an anonymous reader to put up a couple comments charging that "Ms. Conzemius' blog posts are regularly full of terrible factual inaccuracies and wild speculations" -- among other things. Following which they carried on an exchange.

I'm not going to get into a "who shot John?" over this. I'd rather just say, "I'll hold your coats while you and him fight;" although I do think Anonymous has come on a good deal stronger than is warranted by the "factual inaccuracies" he or she points to (and he or she provides no support for the "regularly full" of inaccuracies allegation).

So the primary reason I even bother to mention this is that it stands as yet one more example of the consequences of the secrecy that seems so central to the Regents -- and the University's -- way of doing business.

When an institution insists on secrecy, on denying information to those for whom it is important, that institution is not really in a position to complain when interested individuals rely, instead, on the only straws they can grasp: the related information that is confirmed, intuition, inference, and rumor.

Commentary - Dec. 31: Happier New Year; Gartner the Gomer and Story of the Year

Why "happier" rather than "Happy New Year"? Because this blog has become, over the past six weeks, focused on the UI President Search. And, I'm sad to say, I don't see a reliable source of happiness coming our way in that department in 2007.

On a very long list of people who could be doing something, anything, to make it better, I cannot find one who is doing so. Not: Michael Gartner, a majority of the Regents, Governor Tom Vilsack, Governor-Elect Chet Culver, the Democratic Party-controlled Iowa Senate. As I've written earlier, up this page, "the more things change the more they remain the same." It seems that Gartner is still calling the shots, his way -- a way that, in this one Iowan's opinion, disserves the people of Iowa and their once-great educational system.

So when it comes to Regents' governance of education in general, and their selection of a UI president in particular, it looks like the rest of us will have to pin our hopes on modest, incremental improvements -- hopes for a happier New Year than the one we've just endured.

Gartner as Gomer.

The Gazette regularly publishes an editorial feature of "Homers" (good news) and "Gomers" (bad news). Today it has its Homers and Gomers of the year 2006, and ranks Gartner as the number one Gomer. Under a sub-head of "What a Mess," the item reads, in its entirety:

"WHAT A MESS: The search for a new University of Iowa president fizzled amid allegations of secret agendas and bullying tactics.
UI faculty, staff and students expressed general disdain for and a lack of confidence in the state Board of Regents, particularly its chairman, Michael Gartner. The rancor attracted some national attention, leaving many concerned about the long-term ramifications on the UI’s reputation as well as the short-term troubles the state might have in attracting the best candidates to fill the position vacated by David Skorton."

The Press-Citizen's year-end "2006 in Review" picks of top stories chose, as number one, "Skorton leaves; UI president search fails." The editorial board leaves little doubt how it feels about that story, as the following excerpt illustrates: "Now, nearly a year after Skorton's surprise announcement, the university has spent more than $200,000 to demonstrate just how disastrous a presidential search can be."

And Register blogger David Goodner's list of "The Top Ten Iowa Stories of the Year" put at the top of the list -- that's right: "1. President of the University of Iowa David Skorton leaves for Cornell, Board of Regents mishandles search for his replacement."

The full text of all are linked below.

Media Stories and Commentary

Editorial, "Gomers: What Went Wrong; What a Mess," The Gazette, December 31, 2006

Editorial, "2006 in Review; Skorton leaves; UI president search fails,"
Iowa City Press-Citizen, December 31, 2006

Erin Jordan, "U of I refuses to release presidential search e-mails; The school says messages to and from a longtime administrator regarding the search for a new leader shouldn't be public," Des Moines Register, December 29, 2006

Robert Anderson, Daryl Beall and Willard Jenkins, "Recruit more international students to Iowa," Des Moines Register, December 26, 2006

Dennis Peer, "U of I Problems Will Be Long Lasting,"
Des Moines Register, December 28, 2006

Stu Bassman, "Employees Aren't in Charge,"
Des Moines Register, December 28, 2006

Diane Heldt, "UI Presidential Search Leader Encouraged by Positive Feedback,"
The Gazette, December 29, 2006

Diane Heldt, "More Documents Released in UI Presidential Search," The Gazette, December 29, 2006

"UI Complies With Public Records Request; No Documents from Colloton Released,"
Iowa City Press-Citizen, December 30, 2006

"Press-Citizen's 'Person of the Year;' A Bumper Crop of Finalists: Michael Gartner,"
Iowa City Press-Citizen, December 30, 2006


Matmann22, "Yet Another Posting About People Abusing the System," December 26, 2006 (detailing and discussion of Regents' search expenditures)

Open Country (Maria Houser Conzemius), "UI Advised Not to Release E-Mails," December 29, 2006 (with testy anonymous reader comments and exchange)

David Goodner (Register's "Straight Out of the Cornfield" Blog), "The Ten Most Important Iowa Stories of the Year (Eastern Iowa Edition); President of the University of Iowa David Skorton leaves for Cornell, Board of Regents mishandles search for his replacement,"
Decemeber 30, 2006

Additions to Links

Editorial, "Next UI President Must Engage Students," Daily Iowan, December 7, 2006

Erin Jordan, "Vilsack Speaks With U of I Leaders" [online: "U of I Leaders: Vilsack Stepping Back"]; Also, the Faculty Senate president says he thinks the Board of Regents is trying 'to intimidate' professors," Des Moines Register, December 10, 2006 (with Reader Comment, "Throw the Bums Out!")

Letters, "After this, will top candidates consider coming to university?" Des Moines Register, December 3, 2006

Robert F. Anderson

Dana Hartsock

Jon Shelness

J. Robert Hopson, "Forsyth's Saga," Des Moines Register, December 3, 2006 (with Reader Comment, "This Statement is Incorrect")

James Tomkovicz, "Vilsack Laid Foundation," Des Moines Register, December 3, 2006

Editorial, "State, Regents, UI Must Go Forward," Iowa City Press-Citizen, December 3, 2006

Maria Houser Conzemius, "Still Time to Fly Home and Fire Gartner" [online as "Gov. Vilsack, fly home and fire Gartner'], Iowa City Press-Citizen, December 16, 2006

John L. Baker, "Search Firms Do More Than Just Provide a List of Names," Iowa City Press-Citizen, December 6, 2006

David Tigges, "Regents Beyond Mending Fences," Iowa City Press-Citizen, December 6, 2006

Krishna Das, "Iowa City's Regular Routine," Iowa City Press-Citizen, December 5, 2006 (excerpt)

Mary Maher Sturm, "Regents Are a Bunch of Clowns," Iowa City Press-Citizen, December 4, 2006

James A. Autry and Peter Roy, The Book of Hard Choices: How to Make the Right Decisions at Work and Keep Your Self Respect (New York: Random House, 2006), available from http://www.fictionwise.com/ebooks/ebook42683.htm (includes dicussion of Michael Gartner)

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Thursday, December 21, 2006

UI President Search XVII - Dec. 21-25

Updated and revised, Dec. 21, 7:00 a.m., 9:00 a.m., 6:00 p.m.; Dec. 22, 8:30 a.m., 10:45 a.m., 12:15 p.m., 3:15 p.m.; Dec. 23, 8:00 a.m., 11:45 a.m., 5:00 p.m.; Dec. 24, 8:45 a.m.; Dec. 25, 1:30 p.m. [additional links; no developments requiring commentary]

Extra [Dec. 24]: Today's Commentary Addresses David Skorton as Man and as Symbol

Dec. 21-25 we expect to be relatively quiet with regard to the UI President Search. But to the extent there is additional commentary added to these blog entries, news or editorials are published, or additional online reference sites are found, the links and commentary will be here.

EXTRA [Dec. 21]: The Iowa Conference of the American Association of University Professors (an association of virtually all university and college faculty members in Iowa) has endorsed the UI Faculty Senate "No Confidence" (in the Regents' leadership) resolution, and calls for faculty representation on the Board of Regents (and other governing bodies). The AAUP has had a policy position on shared governance since 1920; the most recent re-statement of the policy was in 1966. The Iowa AAUP resolution of support, and news release, the 1966 AAUP policy position, and Diane Heldt's story in this morning's (Dec. 21) Gazette are all linked from below.

Extra [Dec. 22]: Former UI Law Dean Hines Explains "Shared Governance"; Gov-Elect Culver Considers New Regent Appointments; Press-Citizen Sues Regents for Open Meetings/Public Records Violations; Questions Remain Regarding Second Search [commentary and links to stories, below]

Extra [Dec. 23]: Press-Citizen's Polk County District Court Petition (charging Regents' violation open meetings law) Now Available (and linked, below); Blogger J.D. Mendenhall Provides Top Reasons for Dentist to Head UI Search; Register's Carlson explains why any president the second search uncovers will be unqualified; Vilsack Disagrees, Says Someone 'Badly' Wants to be UI Prez

[Note: If you're new to this blog, and interested in the whole UI President Search story, these blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006. For any given entry, links to the prior 10 will be found in the leftmost column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called one of the most comprehensive analyses of the controversy." The last entry containing the summary of prior entries (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006. My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.]
Commentary - Dec. 21

The American Association of University Professors is the nation's preeminent organization of the teachers in higher education. And "Since 1916, the AAUP has been ensuring meaningful faculty participation in institutional governance. . . . In 1991, the Association's Council made it possible for an AAUP annual meeting to sanction an institution for 'substantial noncompliance with standards of academic governance.'" AAUP, Promoting Shared Governance.

Since 1920 it has had some version of its current
AAUP, "Statement on Government of Colleges and Universities," October 1996. It provides, with regard to hiring university presidents, that "Joint effort of a most critical kind must be taken when an institution chooses a new president. The selection of a chief administrative officer should follow upon a cooperative search by the governing board and the faculty, taking into consideration the opinions of others who are appropriately interested."

Yesterday the Iowa Conference of the American Association of University Professors released Iowa AAUP, "Statement Regarding the Ongoing Difficulties with Shared Governance at the University of Iowa," December 20, 2006. In it the Iowa Conference "endorses the University of Iowa AAUP Chapter 'Resolution in Support of the Faculty Senate Vote of No Confidence,' adopted December 12, 2006" and also "resolved that, given the difficulties faculty at Iowa colleges and universities are facing with respect to meaningful dialogue with governing boards, on matters pertaining to curriculum, finances, presidential searches and strategic direction in higher education, the Iowa AAUP Conference Executive Board requests that all governing boards seek to place one or more elected faculty on their boards."

The effect of these actions remains to be seen, but to the extent they are understood by Iowa's legislators they should bring home to them that the concerns of the UI faculty are a serious matter, not mere professorial petulance, concerns shared by the faculties in the public and private institutions in their own Iowa Senate and House districts, concerns that have been expressed and addressed over the past near-century, and concerns that simply must be understood and addressed in Iowa today.

Private Planes. State29, linked from below, and an "Anonymous" comment to the last blog entry, dismissed concern over the cost of private plane travel by Regents, even the entire cost of the search, and noted that the Regents do have a budget of their own (all costs are not billed to the University). I don't necessarily disagree with any of these points, but obviously didn't make clear the nature of my concerns.

(a) A former law school colleague, teaching the "professional responsibility" course, would tell the story of an applicant to the Bar, confronting the good "character" part of his evaluation, who discovered his once having used a nickel slug in a parking meter became an issue. Clearly the issue was not the amount of money involved. The issue was whether the applicant was the kind of person who, when unsupervised as lawyers are much of the time, could be trusted with his own internal sense of honesty and responsibility to always do the honorable thing.

My concern did not go to the $2900. It went to the "appearance" (and as it happens, reality) of the conflicts of interest involved in "self-dealing" when members of public bodies acquire and pay for goods or services, charged off as "official expenses," from their family members or family-owned companies, using public money. I was concerned about the casualness with which this decision was made. (The fact that the item in this instance -- involving the appearance of a sense of entitlement to services thought by many Iowans to be luxuries (transportation by relatively expensive private planes) -- held the potential (and as it turned out the reality in the form of the Des Moines Register's story) for adverse public relations, is another problem. It merely reflects lack of good judgment, however, rather than the ethical questions involved in self-dealing.)

(b) Similarly, my concern about the total cost of the search does not go to the dollars as such. (I have questioned the need for search firms, but that's another issue that can be put aside for the moment.) The $200,000-plus is kind of the going rate for the kind of search the Regents undertook. The concern goes, rather, to the somewhat arbitrary, petulant and cavalier manner in which the Regents were willing to cast aside what they had purchased for this money -- with the related negative impact on the University's reputation, and harm to the continuing search process.

A comment somewhere other than on this blog, I believe, makes the point that the Regents have the power and legal responsibility for making the selection, and that if all of the finalists were unacceptable to them they had a perfect right to reject them. That's correct; but it assumes good faith and lack of personal agendas, and that was not this case. As UI Faculty Senate President Shelly Kurtz' statement (linked as a "Reference," below) details, the Regents designed the search process used; Regents were a part of the search committee; they voted to forward the final four to the full Board of Regents; they were thought by the Regents to be well qualified; the President of the Regents supported at least two of the four, and ultimately offered the job to one of the four (who, following the chaos, turned it down). If anyone still has questions about what happened, please read, or re-read, the Kurtz statement, linked under "References" below.

(c) While I am unaware of the details of Regents' funding, and apparently left the impression that all the Board's expenses are passed on to the University (which is apparently not true); it was the expenses of the search -- which Anonymous acknowledges are passed on -- that were in issue.

Commentary - Dec. 22

Shared Governance. On the heels of the Iowa AAUP statements about the 86-year history of shared governance in colleges and universities throughout the United States, former UI Law School Dean Bill Hines explains in a Des Moines Register column this morning (linked below), how the concept has worked, and should work, at the University of Iowa. I've been blogging about how simplistic, silly -- and wrong -- it is for Regent Gartner to talk about the Regents' legal right to "get our way" and to "govern" the University of Iowa. I've talked about how the Regents' recent "governance" of the university violates basic good management and administration of any institution, corporate or academic, and how its "governance model" is somewhere between "broken" and "non-existent." The AAUP explains how the Regents violate decades of accepted practice in the governance of higher education. And now Dean Hines adds to these analyses evidence from the Iowa Code that the legislative drafters of Regents' powers were aware of these considerations as well.

Open Meetings and Public Records.

[Note, since writing this, I have obtained, and on Dec. 23 linked below,
Press-Citizen Company, Inc. v. Iowa Board of Regents, Plaintiff's Petition, Polk County District Court, December 21, 2006, which see.]

Throughout the heavy metal chaos of the Regents' "Presidential Search Symphony," and its numerous underlying themes, has been the soft, but recurring, occasional melodic theme of open meetings law violations by the Regents.

I have written that while -- especially as a law teacher -- I cannot minimize the significance of legal violations, I'm concerned that they may get in the way of comprehension and consideration of the practical consequences of Regents' behavior and comments, whether or not they are, technically, "legal." The problems here -- as Dean Hines' column and the AAUP make clear -- go well beyond "the law."

But there are, as well, these legal issues.

To the extent one wishes to explore them, whether because one is just curious, or because -- like the Press-Citizen -- they'd actually like to file a law suit, it's useful to keep separate a number of related, but different, issues.

1. Can meetings be closed for "personnel" matters? The Regents own Web site, in its "Frequently Asked Questions," under "What is the Board of Regents?/Who Serves on the Board of Regents?" states the Regents' open meetings policy: "The meetings are open to the public except when Iowa's open meetings law allows closed sessions for specific reasons, such as the discussion of personnel matters . . .." This does, indeed, seem to be an accurate reflection of the Regents' practice, and their understanding of the law: they don't have to hold open meetings when discussing "personnel matters."

In my view -- which I want to make clear is not being offered as a "legal opinion" -- this is a rather clearly erroneous interpretation of the statutory language.

a. Nothing in the act requires any governmental body, ever, to hold a closed session. The act expressly provides: "
Nothing in this section requires a governmental body to hold a closed session . . .." Iowa Code, Sec. 21.5 (5). That's pretty unambiguous.

b. The default is that all meetings are to be open to public and media -- unless (1) closure is absolutely necessary, (2) and expressly authorized by the act to be closed. "All actions and discussions at meetings of governmental bodies, whether formal or informal, shall be conducted and executed in open session." Iowa Code, Sec. 21.3. "A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons . . .." Iowa Code, Sec. 21.5(1). That also seems to me pretty clear.

c. So what is the statutory source of a "reason" that might relate to Regents closing meetings related to presidential searches? Sub-paragraph (i) says, "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."

Whatever else one may say of this very restrictive, highly conditioned exception to open meetings, it is a far cry from "personnel matters." Let's focus for a moment on what it forbids, or does not authorize:

(1) There is never a requirement that the Board must close a meeting involving personnel.

(2) Moreover, the Board is forbidden to close a meeting on its own motion. A necessary precondition, in the conjunctive (that is, it must also be present), is that the person under consideration "requests a closed session." Without such a request the default -- that all meetings are open meetings -- prevails.

(3) Similarly, the person under consideration is powerless to close the meeting unilaterally. They only have the power to request closure, following which the Board may or may not close the meeting -- and then only if the other conditions of the sub-section are met.

(4) The exception clearly does not cover discussions at meetings regarding the presidential search process to be used by the Regents, the size and composition of a search committee, a motion that all finalists be rejected, and similar matters. It must involve (at a minimum, and among a great many other things) the evaluation of someone's "professional competency."

Thus, sub-section (i) simply does not authorize closure of discussions relating to (a) the disclosure of someone's name, (b) the fact that they have applied for a job, (c) a mere recitation of the facts contained in their public resume or c.v., or (d) that they are among the finalists being considered for a job -- as none of these discussions involve "evaluation."

(I do not address whether the act should provide for confidential discussion, or closed meetings, regarding such matters, or whether the legislature should amend it to so provide. And I appreciate that some courts have interpreted the language as if the legislature had done so. I just don't think the language supports that reading.)

Indeed, based on the sub-section's reference to the evaluation of "the professional competency of an individual whose . . . performance or discharge is being considered," and the next most immediate reference to "irreparable injury," the sub-section really seems more focused on the "professional incompetence" of employees and potential hires than on the general qualifications of new appointees.

(5) However you come out on the assertion in that last sentence, the sub-section is again unambiguous in its requirement that an additional requirement before closing a "personnel matter" meeting is a finding that the failure to close would result in "irreparable injury to that individual's reputation."

This seems to be, as much as anything, an authorization for a governmental body to head off what might otherwise be liability for what's legally called "defamation," "public disclosure of private facts," or "false light." Indeed, the standard as written in the act goes well beyond the usual requirements for a defamation suit in its requirement of "irreparable" injury before a closed meeting is permitted.

("Irreparable injury to reputation" is a much higher standard than the mere "harm" to one's reputation that would normally sustain an action for defamation. On the other hand, defamation involves a false statement (and agency members' concern that liability might result from an inadvertent misstatement); an agency's open meeting discussion of true facts about an employee would normally be actionable only if it met the standards of the other two causes of action mentioned above. However, the point is not that liability would or would not apply (agency members would get some protection from engagement in official business), it is that the open meetings act's provision of this exception may have been motivated by similar concerns regarding the prevention of "injury to reputation.")

Note at least that the act doesn't say "embarrassment." It doesn't say "affect how that individual is perceived." It doesn't say "inconvenience." It doesn't say "if the individual requests that his or her application for a job be kept secret." It doesn't say "awareness by that individual's colleagues that the individual is looking for another job." It doesn't even say "irreparable injury;" it says "irreparable injury to that individual's reputation."

So a fundamental problem with the Regents' process -- in my view; a view with which others disagree -- is that they are simply without statutory authority to keep secret the names of the candidates they are considering or the information about them which is public, and either neutral or positive regarding the candidates' background, education, experience, achievements and awards.

The only exception to that would be those very limited parts of the Regents' discussions -- and those portions only -- during which they are "evaluating" such aspects of a given candidate's professional (in)competence that to do it in open meeting would cause -- not "risk" injury but cause injury, that closure is "necessary to prevent" -- "irreparable injury to that individual's reputation."

Without having access to the minutes and recordings of the Regents' closed meetings -- information the Press-Citizen's lawsuit may provide -- I cannot, of course, know what was discussed. But the minutes on the Regents' Web site of their open meetings provides some very compelling evidence that there has been a lot of discussion and decision making going on that was neither in open meeting nor legally conducted in closed meetings.

2. Can the open meetings requirements be evaded by means of the absence of a quorum?

As one might suspect, in order to be required to have an "open meeting" a governmental body must first be found to be in a "meeting." So what is a "meeting"? The Iowa law says it is "a gathering in person or electronic means . . . of a majority of the members of a governmental body." Iowa Code, Sec. 21.2(2). In other words, any time 5 or more (of the 9) Regents (a "majority") are together in the same place at the same time -- or engaged in a telephone conference call -- the Regents are "meeting" and required by Iowa law to follow the requirements of the Iowa Open Meetings law.

Thus, when Regent Gartner consults with three other Regents at the same time, or when he "polls" the Regents one at a time on some issue, he is not, technically, violating the requirements of the act.

However, the general purpose of the law is to "assure . . . that the basis and rationale of governmental decisions . . . are easily accessible to the people." Iowa Code, Sec. 21.1.

And when, by way of example, the minutes of the Regents' reveal, as they do, that the Board's telephonic meeting on November 17 involved the introduction of a carefully drafted three-point motion regarding the cancellation of the presidential search, the recording of each of the nine regents' votes on the motion, a motion to adjourn, and a vote on that motion, and that it all took place during a meeting called to order at 12:15 p.m. and adjourned at 12:17, one of two possibilities exist.

Either the Regents are even more casual and cavalier about their responsibilities than the most severe of their critics have ever charged, or an awful lot of "actions and discussions" have taken place somewhere other than in open meetings.

This should be troublesome for a good many reasons that I and others have discussed elsewhere whether or not it has been a violation of law.

But this particular blog entry is limited to legal issues. Well, clearly it has been a violation of the purpose and spirit of the open meetings law. Is it more than that? As I've explained this is not a legal opinion. Moreover, it's done off the top of my head without first doing any research among the cases. So I can't cite any. But I do have a recollection of reading some in the past -- whether from Iowa courts or those of other states I can't recall -- that a deliberate, and repeated, standard practice designed to evade and skirt the requirements of open meetings has sometimes been found to be a violation, even though it was not literally and technically so.

3. Are endless closed meetings legal? The Regents went into closed meeting, finished that meeting (a telephone call, I believe), but never came into open meeting immediately thereafter -- as would be the usual practice.

(The law provides the procedure to be used for going into closed meeting, including an on-the-record statement of the legal justification for doing so, and the records required to be kept during that meeting. When I served on the local school board we followed what I believe to be the standard practice -- and I'm about to argue legally required -- of coming out of closed session, back into open meeting, noting the time, and considering any motions or other matters not legally permissible for discussion in closed session.)

Without an intervening open meeting, or following the procedures required for such, the Regents subsequently went into one or more additional closed meetings, before finally holding the two-minute open meeting of November 17, described above.

Did this violate the law? Technically, no; there is no specific requirement that a governmental body ever come out of a closed meeting.

Like the fellow heralded in song, "The Man Who Never Returned," riding the MTA forever "beneath the streets of Boston," the act simply fails to require that Regents ever return from a closed meeting.

But it seems preposterous on its face to argue that the Iowa Legislature contemplated, and approved, such behavior, or that a court would be required to so interpret the act -- especially in light of its stated purpose, quoted above.

While after all these words I can't claim to be speechless, it does remind me of the story my mother used to tell of the woman who came home to her house to find the following note from her newly-hired cleaning lady Scotch taped to the banister: "I am sorry, but I cannot work in a home with a crocodile in the bathtub. I would have said something about it earlier, but I did not think the situation would arise."

I suspect the Iowa Legislature, similarly, simply did not think the situation would ever arise in which a Board of Regents would push deviousness to such creative limits.

When considering the hypo of horribles posed by the Press-Citizen's Jim Lewers (linked below), however, it's important to make a distinction. He suggests that if this practice is not stopped an agency could go into closed session, never come out, and conduct all of its business out of public (and media) view. There are two issues there. (1) With or without the continuous closed session, if a board is considering in closed session matters that the law requires be considered in open meeting, it is a clear violation of law regardless of how long the closed session lasts. That's a slam dunk. (2) If the board is considering a series of matters in closed session, all of which properly fall within the reasons provided by the act for closed meetings, then the only basis for a legal attack is that the board's failure to come out of closed session and back into open session, before meeting again in closed session, violates the law -- notwithstanding the fact that the act does not expressly deal with this detail. For reasons discussed above, I think that's the right result, but I also think it's a tougher case than the former.

4. Public records. At this point, I don't know if you can handle more of this legal stuff, but I can't. So this is all I'll say about the next issue:

In addition to open meetings, public bodies are required to treat most of the paper around the office as "public records," accessible to the public and the media. (As with open meetings, the general rule is accessibility, to which there are exceptions when the agency may keep the record secret.) The particular violation the Press-Citizen is litigating with the UI involves the amount of time the agency has to respond.

New Topic: Search II.

Most of my reactions to the second search, today, are repetitive of what I've written earlier.

1. I see no reason for the past delays since November, nor the future delays until the projected "next summer." Each additional day's delay sets the UI back further and causes additional damages of a variety of kinds.

2. Nor is the delay necessary. We already have the results of what was, at worst, a typical, average search for a university like the UI; it may well have been a "great" search. Its results are, as of now, only a month old. In any event, it's highly unlikely we will do better the second time; the odds are good we'll do much worse, as a result of shooting ourselves in the foot. There are reported to be the evaluated resumes of some 165 candidates, who have been narrowed down as a result of the evaluative process.

This is the Age of the Internet. Time magazine has just made all of its users the "Person of the Year." You can get tens of thousands of signatures on a petition in 24-to-48 hours; raise millions of dollars for a presidential race. Use the Internet! Send out the word -- across the campus, of course -- but beyond, on Web sites such as AAUP, The Chronicle of Higher Education and other online magazines read by faculty. (So far as I know the UI's Web site, linked below, may already have attracted some.) How many new applicants can there be from the last month that weren't already on our lists? In any event, whatever new names there are, throw them in the pot.

Put our minds to it; set a timetable. The UI is a large, diverse, sprawling institution -- a powerful reason for not shrinking the size of the search committee, by the way -- but it's not that big. People will take phone calls and read emails over the holiday (regarding who should serve on the search committee, or whether they'd be willing to). There's no reason a representative number of folks for a search committee can't be put together before the first of January -- certainly by the end of the week thereafter. Give them a couple of weeks to do the first cut on the 165 plus whatever more comes in while the work's going on. There's no reason why we can't have however many "finalists" the Regents want by February 1.

3. The "elephant in the administration building" remains: To what degree is Regent Gartner continuing to call the shots?

As former Defense Secretary Rumsfeld once said, "There are things we know. There are things we know we don't know. And there are things we don't know we don't know."

The UI stakeholders' quite reasonable suspicion that there are a good many things in that last category naturally leads to their speculation and concern.

I have no reason not to have the highest regard for Dean David Johnsen (aside from the fact he misspells "Johnson"). Everything I've heard is extraordinarily positive. Asked to guess, I'd say I'll probably become one of his cheerleaders for the way he conducts the search. But I can't know that at this point.

I was rendered a little apprehensive by Brian Morelli's report (Dec. 21) that "Johnsen was hesitant to opine on some of the issues related to the search such as whether there should be on-campus interviews, the size of the committee and whether the next search committee should include regents or students. He is leaving much of those choices to the regents. . . . Johnsen, as do many of the regents, said he favors a smaller search committee than the previous 19-person committee. Johnsen said the committee will be largely campus-based and major constituents will be represented, but it will be kept small . . .."

Is this to be a process shared between the faculty and other groups on the campus, on the one hand, and the regents on the other, in which "the faculty proposes and the regents dispose"? Are the composition of the search committee, the number of members, the groups and constituencies they represent -- and the matter of on-campus interviews -- to be decided as a result of even what Dean Hines calls "shared governance," let alone by the University? Or are they being dictated by the Regents in general, and Regent Gartner in particular?

To the extent there is a natural tension over such matters, how does Dean Johnsen conceive his role? Is he simply carrying out Gartner's orders? Is he willing to fight back? In public? Does he want to? Is there any point at which -- if things get as bad, or nearly so, as they were in the first search -- he would be willing to resign as search chair in protest rather than capitulate? Has he thought about what he would do in that situation?

To say, as Morelli quotes him as saying, that he is "leaving much of these choices to the regents," is not reassuring that anything has changed since that fateful November 17. Very powerful -- and as yet unanswered -- arguments (based on prior history) have been made in favor of relatively larger search committees, and on-campus interviews. Does Dean Johnsen not hold these views? Or does share them, but feels constrained not to put forward a preference not desired by the Regents?

4. And where does the "vice president for heath sciences" idea stand, and what is the relationship between Regent Gartner and Interim President Fethke?

Morelli quotes Johnsen as saying, with regard to the talk of the appointment of a vice president for health sciences, that it "is out of his hand. However, he hoped to stay in regular communication with Fethke, who would make the appointment for that position."

Has there been an official decision by the Regents to, in fact, create such a position? Is there a specific desire to have this selection made by Fethke alone? To have it made weeks before a new president is hired? (And what might we project would be the impact of that action on our ability to attract what Gartner calls a "great president"?)

To what extent has, is, or will Regent Gartner's preference in this regard be in play? Is this a part of the reason for a lack of urgency about finding a president before next summer -- to have time to find and install this new vice president?

I have no reason to believe there is any basis for such concerns, but they are already kicking around as speculation -- and are one of the inevitable consequences of secrecy.

New Topic: Governor-Elect Culver and the Regents

Read Brian Morelli's, and especially Kay Henderson's, reports of what Governor-Elect Culver has had to say about the Regents.

He's critical of the Regents, especially with regard to openness. He wants them to follow the "spirit" as well as the letter of the law. However, he says nothing critical of Regent Gartner, as such -- and that's the issue. He says that's up to Governor Vilsack and Gartner -- which, in fairness to Culver, it is -- at least initially. Vilsack appointed Gartner, and Vilsack can remove him today -- subject to the Iowa Senate's ratification upon its return in January.

Culver notes he'll have four regents to appoint (Bedell's offered his resignation, and three Regents' terms expire in 2007) and says he's "taking this responsibility very seriously." and that "I'll be making unprecedented changes." (Although what that means is not clear. It's at least rare, if not "unprecedented," that a Governor gets to replace 4 of 9 Regents at one time, so that may be all he meant.)
Commentary - Dec. 23

I've added a link to the Petition filed by the Press-Citizen in its lawsuit against the Board of Regents for the alleged violations by the Board of the Iowa open meetings law. This suit could bring to light at least some of the details regarding the mysterious, backroom dealings of the Board. If it does, you'll find the results here.

The Register's John Carlson decides in his column this morning (Dec. 22) "to butt into other people's lives and tell them what they should do." John Carlson, "Suggestions Inspire a Bout of Butting In," Des Moines Register, December 22, 2006. In the course of the column he has some advice for the Regents:

"Iowa Board of Regents member Teresa Wahlert, whose husband billed the state $2,982 for private airplane trips back and forth from Des Moines to Iowa City for his wife and regents president Michael Gartner, should get a driver's license. Figuring in travel time to and from airports they saved, gosh, maybe 30 or 40 minutes each way. They're busy, important people, so I'm sure they justify it by telling themselves time is money.

"Their time. Our money.

"They also should forget about hiring a first-rate person to be president of the University of Iowa. That thing is such a mess that nobody worth a darn will want to go near the place."

Meanwhile, blogger J.D. Mendenhall addresses the reasons why a dentist is the best choice to head the presidential search committee (see the link to his blog, below).

Actually, Carlson has a point, and I am once again reminded of a personal experience.

After the initial frenetic transition, one of President Johnson's first tasks in 1964 was finding someone to appoint as Maritime Administrator. Although I didn't know him, or any of his advisors, staff and friends, I was invited to the White House one afternoon and, much to my surprise, soon found myself in the oval office listening to him explain to me why he wanted me to be Administrator of the U.S. Maritime Administration -- an agency I had never heard of before. The more he explained the less interested I became in serving in this position.

As I subsequently learned more about the agency it became obvious to me why he would reject those who had applied for, and wanted, the job. He realized that anyone who would want to transfer taxpayers' money to subsidize the shipyards and shipping companies in this country was clearly unqualified to do so. Since I was, apparently, the only one who hadn't applied, and I clearly wasn't interested, I ended up being appointed.

As I've written seriously before, and as Carlson writes humorously today, there is a similar serious question as to whether anyone who would want to be president of the University of Iowa at this time in its history could be qualified to hold the position. Aside from a desire for an increase in pay, or a stepping stone to another position, why would anyone who was even marginally qualified -- let alone someone meeting Regent Gartner's standards for "a great president of a great university" -- choose to come here rather than the other universities available to them? Consider:

(1) Despite overwhelming demands for the resignation or dismissal of Regents' President Michael Gartner (by State legislators, editorial writers, and UI stakeholders), Gartner has made clear he refuses to resign, Governor Vilsack refuses to remove him, and Governor-Elect Culver won't commit himself to do so.
(2) At a minimum, Culver will be making four (of nine) appointments to the Regents in 2007.
(3) It's not clear what Interim President Gary Fethke will have changed about the University during the year (or more) he will have served -- or to what extent those changes reflect an undeclared agenda of his or Regent Gartner's.
(4) A major component of the university, by any measure, is "health sciences." The job any new UI president steps into will be radically affected by whatever is decided, and done, regarding a new vice president for health sciences and his or her portfolio -- and their ties to Regent Gartner.
(5) A lot of work needs to be done on a new "strategic plan" -- as well as a governance model for Regents-universities' relationships. A new president will walk into either (a) the current vacuum, not knowing what will emerge from the Regents' process on either topic, or (b) very recently adopted documents the president had no opportunity to help shape.
(6) With the history of November 17, and the Regents alienation from the faculty, and the Regents' (and possibly Dean Johnsen's) insistence (or willingness) to forego on-campus interviews, a new president will be walking into a mob of, at best suspicious strangers, with whom he will be, as they say in Hollywood, "starting off backing up."

In short, I share Carson's sense that "nobody worth a darn will want to go near the place" and that this is one of a good many problems left as fallout from the mess the Regents' made of the last search.

Vilsack Says All's Well in Iowa City. Don't know where Kay Henderson got the story and quotes, and her Radio Iowa Online report (Dec. 23, linked below) doesn't say, but Vilsack obviously disagrees with Carlson's (and my) assessment. He tries to distance himself from what his Board of Regents has done -- all nine of whom he's appointed: "The governor's got nothing, really, to do with this. It's about the search process." But he also makes light of the UI's present position, saying "someone will want 'badly' to be the U-of-I president because 'it's a great university; it's a great job.'"

Putting aside that we don't really need someone who will "badly be the UI president," I fear we may have another one of those "which would be worse?" instances on our hands. Vilsack denies that "public confidence in the Board of Regents has waned." "This board of regents did a great job," he contends, in Cedar Falls (remind you of Bush's praise of FEMA's Brown?). Iowa City just involved a "few bumps in the road." So "which would be worse": (a) that Governor Vilsack has never read UI Faculty Senate President Shelly Kurtz' itemization of grievances, or otherwise bothered to fully inform himself regarding what his Board of Regents has done, or (b) that he is fully aware of the facts and is willing to dismiss it all as a mere "bump in the road"?

I've also added links to another news story and more entries from others' blogs.

Commentary - Dec. 24: David Skorton

Today's commentary is simply a tribute to David Skorton -- and everything that his all-too-brief service as UI's president, the Regents' failure to appreciate his worth, and his departure, symbolize about the mess we're in.

Since November 17, 2006, when this blog's focus shifted exclusively to coverage and commentary about the University of Iowa presidential search, seemingly every day has brought new revelations, stories, law suits, disappointments and frustrations -- in short, the stuff of which blogs are made.

The day (Dec. 24) is still young, but with luck we may have a respite of 24 or 48 hours, or more, with no new developments in this saga of chaos and remorse. The only journalism so far is the Press-Citizen's usual Sunday review-of-the-week mention of the past week's news, a letter to the editor in the Register that inspired the "unforgettable" song about Regent Gartner, "Indispensable"), and that columnist Ken Fuson's list "of the gifts I'd really like to give this year" included one "To the University of Iowa - a new president who makes everyone happy. Good luck, Santa!" Ken Fuson, "Santa Ken opens his bag o' gifts for Christmas '06," Des Moines Register, December 24, 2006.

The winter solstice -- and all the festivals and religious celebrations of the world's great religions clustered around this time as the days begin to lengthen -- is a time of good cheer. But that cheer is muted to some degree as we reflect on those who are no longer with us for one reason or another. Their very lives on this Earth may have ended. Or friends and family members may be happy, well and prospering, but doing it somewhere else. This is especially true in the academic community where students, of course, are only with us for a few brief years, and most, sadly, essentially disappear from our lives as they move on with their own. Colleagues, too, have often been born and raised in one place, educated and worked in one or more other places, and continue to move about as they are attracted away.

But there is something especially poignant about the loss of David Skorton.

My own path has been blessed, as a result of what I continue to believe has been accident as much as anything, with the opportunity to come to know and work with many of the most accomplished people of the past 50 years. Among all of them -- from the household names of presidents, Supreme Court justices and other celebrities to the unknown who never even enjoyed their "15 minutes of fame" -- David Skorton stands out.

If you knew him, or worked with him, you know what I mean. If not, I won't be able to convey it. Part of it was his range of talents -- academic, yes, with appointments to the faculties in the computer science department and Colleges of Medicine and Engineering, and experience as vice president for research. But far beyond that, he was a practicing doctor who also hosted a jazz program on a local radio station, and played jazz flute and saxophone. He was bright, articulate, very well educated, creative, thoughtful, with a sense of humor that could have sustained him as a stand-up comic, and possessed of a remarkable set of social skills.

He had indicated his desire to stay at Iowa for life. He had observed that, in a state in which the median income was in the $40,000 range, his $300,000-plus was "quite generous."

Of all the harm done to the University of Iowa by Governor Vilsack's nine Regents, and there's quite a long list one could itemize, the one thing that ought to provide the basis for criminal convictions of some sort is their failure to comprehend that they already had the Hope diamond of academic administrators in their midst; not only their failure to recognize and reward him with the care and respect such a precious human asset should be accorded, but their affirmative efforts -- sadly successful, as it turned out -- to drive him away. (As a measure of the esteem in which Skorton is held by the international academic community, what they drove him to was the presidency of one of the nation's most prestigious universities, Cornell, at a salary three times what Iowa's Regents were willing to pay him.)

Why is it, from Socrates, to Jesus, to Saint Thomas More, to Galileo, that the misanthropic mediocre feel so threatened by the moral and mental mighty? Why are they so much more willing to assassinate the messenger than to assimilate the message -- especially when their best interests clearly require the latter?

Anyhow, if you miss David Skorton as much as I do -- and not only at this time of year -- here are some video reminders of our friend and the difficulties we will endure trying to find his like again.

The first are a couple of examples of the Daily Iowan's video service: an interview near the time of his departure that demonstrates his role as a father and his graciousness in comments about the Regents, and another on the occasion of his inviting displaced students to live in his home following the tornado that hit Iowa City in April. Others are from Cornell: his remarks praising the faculty at the December 2006 graduation (no reference to a small, vocal "radical minority" coming from him), and playing jazz flute with a group.

(Note: To play, if the "play" icon in the middle of the picture doesn't respond, click on the arrows in the lower left hand corner of the individual videos.)

Watch, shed a tear, and hope for a happier new year.

David Skorton Interview

DITV - President Skorton moves students in

Skorton - Cornell December Graduation 2006 - Barton Hall

Cornell's New President: Ron Burgundy (ivygateblog.com)


Media Stories and Commentary

James A. Autry, "Localized Storm Front Triggers Iowa City Squalls," Des Moines Register, December 24, 2006 (with reader response)

Andy Popson, "Indispensable," Des Moines Register, December 24, 2006 (with lyrics to the "unforgettable" song about Regent Gartner, "Indispensable)

Diane Heldt, "UI 'No Confidence' Vote Endorsed; State faculty group supports statement against regent leaders," The Gazette, December 21, 2006

"Our Quick Take on Last Week's News Stories: Regents," Iowa City Press-Citizen, December 24, 2006

Brian Morelli, "Johnsen Hopes for Smaller Group; Says he will try to keep search open," Iowa City Press-Citizen, December 21, 2006

"Iowa Professors' Group Calls Out Regents," Iowa City Press-Citizen, December 21, 2006

N. William Hines, "Regents, Campus Should Resuscitate Shared Governance," Des Moines Register, December 22, 2006

James Q. Lynch, "Culver to Pick 4 New Regents; No plans to request Gartner resignation," The Gazette, December 22, 2006

"Press-Citizen on Open Government,"
Iowa City Press-Citizen, December 22, 2006
  • Jim Lewers, "Regents Jeopardized Open Government"
  • Mike McWilliams, "Press-Citizen Sues Board of Regents"
  • Brian Morelli, "UI Late on Open Records Request"
  • PC-Requests
  • Brian Morelli, "Culver May Appoint Four New Regents"
O. Kay Henderson, "Culver to Make 'Unprecedented Changes' in Board of Regents," Radio Iowa, December 21, 2006

O. Kay Henderson, "Vilsack: Someone Will 'Badly' Want to Lead U-of-I,"
Radio Iowa, December 23, 2006


Open Country (Maria Houser Conzemius), "Kudos to Press-Citizen for Suing BOR," December 22, 2006

Open Country (Maria Houser Conzemius), "Legal to Bill UI for Regent Husband's Plane Trips?" December 20, 2006

Open Country (Maria Houser Conzemius), "Gov.-Elect Culver & Legislature re: Regents," December 17, 2006

David Goodner, "Eastern Iowa Newspaper Throws Down Gauntlet, Sues Board of Regents," December 21, 2006

J.D.'s Blog Bites (J. D. Mendenhall), "Top Reasons for a Dentist to Head UI Search,"
December 21, 2006

State29, "don't you know who I am?" December 20, 2006


UI Faculty Senate President Sheldon Kurtz, "Statement to Faculty Senate Regarding Vote of No Confidence in Regents," version 2, December 12, 2006

UI Faculty Senate Web Site

UI Faculty Assembly Chair Richard Hurtig, "Statement on the Resolution of No Confidence in the Leadership of the Board of Regents," UI College of Liberal Arts and Sciences, December 13, 2006 (includes copy of resolutiion)

UI CLAS Faculty Assembly Web Site

UI Staff Council Web Site

UI Staff Council, "Resolution of No Confidence in the Leadership of the Board of Regents," December 13, 2006

Board of Regents, State of Iowa Web Site

Minutes, Board of Regents Meeting, August 3-4, 2005, p. 9 (approval of motion granting differential in raises for three presidents of Regents' institutions)

The University of Iowa, "Presidential Search" Web Site and "Position Description"

Presidential Search -- University of Iowa -- Criteria Rating Sheet -- Part II, Version 2

UI Contract with Heidrick & Struggles, April 18, 2006 (search firm)

"UI Presidential Search Confidentiality Agreements"

American Association of University Professors Web Site

AAUP, "Statement on Government of Colleges and Universities," October 1996 (full statement of policy)

AAUP, "Governance of Colleges and Universities", December 20, 2006 (an MS Word file)

Iowa AAUP, "Statement Regarding the Ongoing Difficulties with Shared Governance at the University of Iowa," December 20, 2006 (an MS Word file)

Press-Citizen Company, Inc. v. Iowa Board of Regents, Plaintiff's Petition, Polk County District Court, December 21, 2006

Des Moines Register, "U Of I President Search Archive" (Register's stories and editorials only)


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