Open for discussion
Courts rule whether boards of trustees can do business in private
The board of trustees at public colleges and universities has the crucial job of passing the school’s budget, hiring the president and approving policies that affect students. When its tasks turn sensitive, some boards have tried to keep their discussions private in hope of avoiding public scrutiny.
This spring, state courts ruled on the actions of trustees at three universities who were sued for violating freedom of information laws. The court battles stemmed from private discussions the boards held about an investigation into a coach’s actions, a controversial drug raid and a potential merger with another school.
The courts set guidelines for when trustees can close meetings and records and what requirements they must meet. Because these decisions rely on state law, the courts reached different rulings on whether to limit or extend public access.
In May the Alabama Supreme Court ruled a board of trustees can hold closed meetings as long as a quorum of members is not present. The Nevada Supreme Court said a board of regents must accurately inform the public about what will be discussed at meetings. And the Indiana Court of Appeals ruled that the board of trustees at Indiana University must release some records of its investigation, which led to the dismissal of former head basketball coach Bobby Knight.
Secret meetings of boards of trustees run counter to the entire mission of a public university, said Charles Davis, executive director of the Freedom of Information Center at the University of Missouri.
“A board should be a transparent body,” Davis said. “The trustees should be setting examples at the top instead of shaming us at the top.”
Auburn University was sued by its student newspaper and seven professional newspapers for allegedly violating the state open-meetings law 39 times between 1999 and 2001. In one of those secret sessions, the full board met to discuss whether to merge with Wallace State Community College.
Under the state supreme court decision, at least half of those alleged violations now would be permissible.
The Auburn Plainsman claimed in its joint lawsuit with the other newspapers that the board of trustees made it a practice to discuss official university matters in unannounced committee meetings attended by at least three members. Under the board’s bylaws, at least three members are needed to attend committee meetings in order to conduct business.
Committees can make policy recommendations; therefore, the newspapers had argued, they must be open to the public.
The Alabama Open Meetings Law forbids public officials from holding closed meetings unless they are discussing the reputation of others or pending litigation. Each violation is punishable by a $10 to $500 fine.
In August 2001, Lee County Circuit Judge Robert Harper ruled that the board cannot hold closed sessions if at least three members are in attendance.
The Alabama Supreme Court partially reversed the district court decision and ruled 5-0 that the board of trustees could meet in private, as long as less than an eight-member quorum was present. Under the board’s amended bylaws, a quorum is required to meet in order for the board to make binding decisions.
The court qualified that decision, ruling that less than a quorum could not meet in committee if the committee was empowered to act on behalf of the university. There are currently two such committees that have that authority.
Dale Harrison, chair of the university’s communication and journalism department, said the high court’s interpretation of the open-meetings law could limit the public’s access and ability to participate in the Alabama government’s deliberative processes.
“It is a decision that caught us all by surprise, all of us who are dedicated to freedom of information,” Harrison said. “To allow seven or fewer to meet in private lies in the face of every principle about openness.”
The supreme court’s ruling will allow the board to legally change the bylaws to permit private committee meetings.
“It is my hope and that of many others that the board will take the higher road and go by its own stated policies of having open meetings,” Harrison said. “There will be no means by which to enforce it if they don’t.”
The state supreme court remanded the case back to the district court to determine which of the original 39 meetings cited in the newspapers’ claim could still be considered violations of the sunshine law. The university has acknowledged that 16 meetings violated the law, but according to the newspapers’ lawyer, Dennis Bailey, the court will not hand down civil fines.
Davis, the director of the FOI Center, said courts have ruled that as long as the trustees are not making policy decisions, closed meetings among less than a quorum of the board is lawful under the open-records laws.
“But what else do trustees do when they meet but make policy? They are clearly meeting with less than a quorum to circumvent the law,” he said.
The judiciary should be questioning the purpose of individual meetings, Davis said. “If the individual meetings are being used to frustrate the spirit of the law, they should be declared illegal.”
Sometimes the issue is not how boards of trustees meet, but what they say when they do meet. At the University of Nevada, Las Vegas, the board of regents discussed a topic not listed on its agenda.
In reversing a district court ruling, the Nevada Supreme Court said that the board of regents had failed to issue a “clear and complete” list of topics to be discussed at a public meeting, as the Nevada Open Meeting Law requires.
In September 2000, a committee of the university regents held an impromptu discussion about a controversial report that concerned a campus police raid for drugs on school property. The committee then reported the discussion to the full board of regents.
Following the meeting, Nevada Attorney General Brian Sandoval filed a complaint, claiming that the committee and the full board had violated the open-meetings law and sought an injunction so that the regents had to abide by the law in the future.
The state supreme court wrote that although discussion of the report’s content in the abstract might not have violated the law, the board “went too far” when it brought up details of the report without giving prior notice of the topic.
“Incomplete and poorly written agendas deprive citizens of their right to take place in government,” and interfere with the “press’ ability to report the actions of government,” the court concluded.
The state supreme court also rejected the regents’ argument that the attorney general’s claim infringed on their First Amendment rights and placed too much of a burden on public bodies.
The high court sent the case back to the district court to determine if an injunction should be issued, which would force the regents to provide complete agendas to the public in the future.
Tom Kirkpatrick, the chair of the board’s Campus Environment Committee, said he agreed the board had violated the law. He said the public has a right to know what occurs in public meetings.
“Sometimes I just wish we could meet and hash out issues,” Kirkpatrick said. “Then we could be more open and really state what we think instead of trying to be proper and correct.”
At Indiana University, the board of trustees tried to keep confidential its investigation into former basketball coach Bobby Knight. The appeals court decided that the trustees had to release factual records concerning Knight’s dismissal and disciplinary actions.
The court ruled, however, that the university can redact information that identifies students or that includes speculation or opinions.
In 2000, two trustees initiated an internal investigation of Knight after a student on the basketball team filed a complaint that Knight had twisted his arm after he greeted the coach by his last name. The investigation led to Knight’s dismissal.
The appeals court decision stems from a lawsuit filed by The Indianapolis Star, which was denied access to detailed records of the investigation. The paper claimed the university violated the Indiana Access to Public Records Act when it only offered summary reports of the investigation.
The university claimed that the materials were protected by an attorney work-product privilege because the two trustees who performed the investigation were attorneys. The Star countered that these privileges had been waived when the university chose to release some of the records in news conferences.
Sandy Barger, acting public access counselor for Indiana, said the state public records act exempts materials that are speculative or express an opinion, while factual information must be released. According to Barger, this case makes clear that factual information must always be released, even if it is within a document that contains opinions.
Davis said a board of trustees is more likely to operate openly when student journalists work together with local professional journalists to gain access to meetings and records.
“Of all the trustees in the 50 states, most are doing their jobs and doing them well. Typically when they avoid meeting in public, it’s because they are dealing with a particularly contentious issue,” Davis said. “Forming coalitions and alliances is essential. The more people who go in and demand public meetings, the harder it gets for [trustees] to close them.”
CASES: Auburn University v. The Advertiser Company, No. 1002096, 2003 WL 21205832 (Ala. May 23, 2003).
Sandoval v. Board of Regents of the University, 67 P.3d 902 (Nev. 2003).
Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trustees of Indiana University, 787 N.E.2d 893 (Ind. App. 4 Cir. 2003).
Fall 2003, reports