Tuesday, May 22, 2007

UI Held Hostage Day 486 - Secrecy Issues & Other UI Items

May 22, 2007, 7:30 a.m.

UI President Search Updates and Other UI Items

ProLog For presidential candidates and others interested in what's going on at the University of Iowa, I have earlier referred you to our distinguished Executive Vice President and Provost Michael J. Hogan's Web site. To this he has now added his personal blog, creatively christened "ProLog." It will be well worth a regular look, as he says, "It’s my hope to update things here every few days."

Abolish Presidency? Had the Regents simply left Provost Hogan in charge after President David Skorton's departure to Cornell University not only would they have provided the smoothest transition in the University's history, Hogan would soon be into his second year. Yesterday morning's Press-Citizen carries a letter to the editor that suggests something along this line. Julie Spencer, "Let's Just Get Rid of President's Position," Iowa City Press-Citizen, May 21, 2007, p. 11A ("perhaps the best remedy to this ongoing debacle is do away with the president's position altogther").

Pounding Nails Mary Gilchrist, former director of the UI Hygienic Lab, was -- I think it accurate to say -- "fired." Whether her advocacy for the lab was "insubordination" or "whistle blowing" is still in litigation. Whatever a judge may decide, the Massachusetts State Laboratory decided it was exactly the kind of leadership they wanted. She's gone; they've got her now. Hieu Pham, "Gilchrist Lands Job at Mass. Lab," Iowa City Press-Citizen, May 21, 2007, p. 1A. (Hieu Pham quotes Gilchrist as saying, "I think one has to do the right thing, and the consequences cannot be the major factor that determines what one does.")

"Bob," a former employee of Chrysler, said of his former working environment: "if you speak up about an issue, you are considered the nail to be pounded down, not an angel spreading the 'quality word.'" It's a common institutional observation -- and complaint. On May 3 I wrote that "Skorton is the former UI president who was run off by lesser mortals . . .." Nicholas Johnson, "UI Held Hostage Day 467 - UI's Stealth President," May 3, 2007. It produced the following comment to that blog entry from "Obadiah Plainman": "As an attorney, one would think you would know better than to use heresay [sic] to prove a case." It was a fair criticism. (Though I had some credible sources, I didn't feel I had permission to use them). I should have said, "some feel," or "it is rumored that."

But whatever the cause, whatever the characterization, in my opinion the UI is the poorer for the loss of Gilchrist as well as Skorton.

Does Iowa's Open Meetings Apply to Presidential Searches? Last Sunday, upon my return to the blogosphere, I wrote, "I haven't even had time to go through the last ten days' newspapers, . . .. Meanwhile, here are some random items." See Nicholas Johnson, "UI Held Hostage Day 484 - May 20 - Back to Blogosphere," May 20, 2007.

"John Barleykorn" responded with the following comment: "What, no response to your former boss saying the Board of Regents isn't bound by the open meetings law?" It was a reference to N. William Hines, "Law Doesn't Support Charges," Iowa City Press-Citizen, May 14, 2007, p. 11A ("Before the open meetings law zealots storm the university with torches and pitchforks, they and the media that hypes their concerns would do well to real carefully the Iowa law they so righteously champion . . ..")

The only reason I didn't mention this Sunday was because I hadn't yet seen it.

As I did write on Sunday:
The position of Search Committee II is "we will only comply with Iowa's open meetings law if our candidates are willing to be law abiding -- but a few of what we think are our best candidates are scofflaws and we feel we need to accommodate them." I addressed this position before I took my blog break. My position was, in effect, "if you want to violate the law at least make a stab at coming up with a legal argument as to why all of its provisions are inapplicable to what you're doing." See Nicholas Johnson, "But Before I Do . . ." in "UI Held Hostage Day 472 - Beagle's Landing; More Secrecy," May 8, 2007.

What Search Committee II decided it would do -- over the objections of Iowa's governor and the President of the Board of Regents -- was that it would comply with a part of the notice provisions, but not all: they would reveal when they would be interviewing candidates but not where.
Bill Hines is a distinguished legal scholar and teacher, one of the longest serving law school deans in American history, and one who was selected by his colleagues as President of the American Association of Law Schools. He's also a personal friend, has been a basketball player of some considerable skill, and continues to be able to find the most illusive fish in Minnesota. In short, his analysis of the Iowa Open Meetings Law is somewhere between persuasive and entitled to great respect.

Where I totally agree with him is that if Search Committee II wants to take the position that it is somehow exempt from open meetings requirements its legal argument needs to be structured as he has tried to present it. Thankfully, he does not even try to make a case for Search Committee II selectively picking from the act the provisions with which it will (date and time of meeting) and will not (where the meeting is to take place) comply -- as the Committee did. He just flat out argues that the act is not applicable to Search Committee II at all.

I also agree that the Supreme Court of Iowa might (but not, as he argues, "would surely") buy his interpretation.

Finally, I agree with his unstated assertion -- as Professor Arthur Bonfield and I have argued elsewhere -- that the Legislature needs to revisit many of the provisions of the Iowa Open Meetings Law, including those affecting this search.

Where I respectfully disagree -- as I have repeatedly argued in these blog entries -- is that the language of the act can only be interpreted in the way he suggests. I analyze it differently. I believe that Search Committee II is covered by its terms. All of them.

But arguing about such interpretations is what lawyers (and law professors) do. (And although it is somewhere between difficult and impossible for others -- including our spouses -- to comprehend, at its best it is our bizarre way of bonding and strengthening personal respect and affection.)

Clearly, his position is not universally held. There are lots of us "open meetings law zealots" out here.

On the same page with Dean Hines' op ed is Duncan Stewart, "UI Search Candidates' Names Should be Public," Iowa City Press-Citizen, May 14, 2007, p. 11A ("Anyone who wants to lead Iowa's largest university . . . should have the backbone and intellectual standing to make their application public").

And clearly Harold Hammond, an emeritus professor in the department of oral pathology, radiology and medicine, and his lawyer, Iowa City attorney Gregg Geerdes, do not buy the Dean's legal analysis. "Hammond is asking the court to void any and all actions taken by the search committee, stop the defendants from violating the laws again and compensation for attorney's fees."
Kathryn Fiegen, "Emeritus Professor Sues Regents, Search Committee," Iowa City Press-Citizen, May 19, 2007, p. 1A.

Secrecy Issues: What's Really At Stake? OK, let's put the legal issues aside for now, and try to understand (a) what are the legitimate issues of concern to presidential candidates regarding secrecy, and (b) if and how Search Committee II's approach is responsive to those concerns.

There seems, to me, to be an internal inconsistency in the Committee's logic and process. I'm the first to acknowledge that may well be because I just don't know -- or understand -- what they've done and why.

During their interview process secrecy has been a paramount concern -- up to and including a willingness to violate the law (in the view of some lawyers, journalists, the Governor of Iowa and the President of the Board of Regents). But now, during the interim between their interviews (May 13 and 14) and passing four names on to the Board of Regents (sometime in June), "In a unanimous decision, the group voted to schedule campus visits for 'several candidates' before forwarding a final slate to the Iowa state Board of Regents." (Of course, the Committee hasn't yet figured out how that is going to work. "The search committee also decided to form a subcommittee to devise ways the on-campus interviews could happen . . ..") Kathryn Fiegen, "UI Finalists Will Interview on Campus; Search Group Decision Unanimous," Iowa City Press-Citizen, May 19, 2007, p. A1.

Now I'm not trying to be cute or critical. I'm really just trying to understand what this is about.

Fiegen quotes one member of the Committee as saying, "An abbreviated process may be necessary to keep some candidates in the pool." An earlier story reported, "The committee says exposure would cause 'needless and irreparable harm,' . . . [And, from another Committee member:] being a known candidate can jeopardize someone's current job. 'Outside academia, people have a hard time understanding,' . . .." Brian Morelli, "Search Committee Proceeds With Plans; Group Enters Closed Session in Undisclosed Location," Iowa City Press-Citizen, May 12, 2007, p. 3A.

Now there is some question as to whether "being a known candidate" really does cause a candidate harm. Indeed, I am informed that some of these candidates, engaging in secret interviews, are the very ones leaking the fact they are under consideration -- precisely because it enhances their reputation in their current position, and may even be the basis for a pay raise.

And given what appears to be most Americans willingness to be moved at any time for an increase in pay, prestige and power, can't it be reasonably assumed that almost every university president and provost is continuously searching for new opportunities? That being the reality, what's the big deal about acknowledging it?

But let's put all that aside as well, and assume for the moment that to be known as a potential president of the University of Iowa is something no one would ever want known because of the "irreparable harm" to their reputation -- something close, I gather, to the legal standard for "defamation."

Accepting that, why does the need for secrecy only extend to their being interviewed by Search Committee II? Why is it not equally applicable to their showing up on campus? Assuming that we are not going to follow the advice from The Gazette that they all show up with pillow cases over their heads (the paper offered to supply them) [Editorial, "The Pillowcase Option," The Gazette, May 9, 2007, p. 4A] won't their identity then be known -- back home as well as in Iowa City?

Is this just a problem in risk assessment, and benefit-cost analysis, for these gamblers playing the odds? That is, having one's identity revealed at any stage is a cause of "irreparable harm," but the odds of actually being chosen improve as the process progresses. When you're one of 100 or more potential candidates the odds of being selected are slight, and the harm is substantial. When you're one of four finalists, the harm is just as great, but the odds of you actually being selected are much better; thus, the reality of significant harm (from being known to be a candidate) is outweighed by the relatively good odds of receiving the even greater benefit of becoming the UI president.

(Dean Hines' interpretation of the law may be found to be correct. Or the Legislature may revise the law to exclude universities' presidential searches from open meetings requirements. It may be it will be decided that the public and media have absolutely no right to know about this process. That's within the power of our democratically elected representatives to decide. But if we do have a need and right to know what is going on, at what stage in the process does that right come into being? Are the identities of the 100 or so candidates who have been rejected by Search Committee II of no relevance to our understanding the process?

Recall what the 19th Century New York City political Boss William Tweed is credited with having said, “I don’t care who does the electing just so long as I do the nominating.” By the time Search Committee II has done the "nominating" -- whether of those who come for campus visits, or the four they forward on to the Board of Regents -- it leaves relatively few choices for "who does the electing."

Our national parties' presidential candidates used to be selected as our UI president is being selected. A "smoked-filled, back room of Party leaders" would do the nominating. The voters' choices were limited to two candidates: one Republican and one Democrat. Today's caucuses and primaries open the nominating as well as the election process to the public and media. Of course, there may be more reason for secrecy surrounding the selection of the President of the University of Iowa than for the President of the United States.

To reveal only the names of some list of "finalists" may be a pragmatic compromise, all considered. But it is just that: a compromise. It is not -- to me, at this time -- a reasoned position.)

And the Committee is saying that "several candidates" will visit the campus -- following which four names will be submitted to the Board. So are we talking numbers here? It would be devastating to an educational administrator were it to become known that he or she was among the "less than 20" interviewed at a secret location, but it is somehow perfectly OK to be one of, say, seven candidates visiting the campus?

And what's this "abbreviated process" about -- a reference to campus visits that are compressed into a relatively shorter time period (say, three or four days rather than a couple of weeks)? There's no "irreparable harm" to having it known that you were a part of an "abbreviated process" at Iowa, but if the University takes its time, and does a little more thorough job of getting to know a number of finalists (and they the University), somehow your career is ruined? Isn't this like a "little bit pregnant"? It seems to me you're either a candidate or you're not. Unless we really are going to take The Gazette's pillow case advice, or limit the candidates' visits to a helicopter fly-over of Iowa City, it seems to me it's going to be very difficult to keep a veil of secrecy over the identity of those candidates visiting the campus.

Oh, well, there are a great many things in this life I don't understand, and maybe I should just chalk this one up as one more.

UICCU and "Optiva"

The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is
"UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007. Since then there have been two major additions: Nicholas Johnson, "Open Letter to UICCU Board" in "UI Held Hostage Day 423 - March 20 - UICCU," March 20, 2007, and "'Open Letter': Confirmation from World Council of Credit Unions" in "UI Held Hostage Day 424 - March 21 UICCU," March 21, 2007.

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[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.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

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 time there was an entry containing the summary of prior entries' commentary (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.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

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Media Stories and Commentary

See above.

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1 comment:

Nick said...

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