Behind closed doors
When the University of Connecticut voted to authorize its $1.3 billion budget in June, there was no opportunity for public discussion.
Although the vote was taken in public, the budget discussion for the public university with 18,000 students happened in executive session — a closed meeting of the financial affairs committee of the board.
There’s an exemption in Connecticut’s Freedom of Information Act that allows public agencies to meet behind closed doors if the subject is a draft budget document and the agency determines that public interest is better served by not disclosing the draft.
UConn cited that exemption as the reason for the closed budget discussion, which has garnered some pushback from free speech advocates and journalists, said Daniel Klau, a lawyer and member of the New England First Amendment Coalition.
“They were candid about it,” Klau said. “Let’s put it this way: they were not secret about having a secret meeting.”
While there is currently no legal action planned against UConn, in the last few years, there have been a rash of court rulings against college trustees who met in secrecy. And advocates in several states are pushing legislation to clarify or expand the public’s right to attend university board meetings.
In Connecticut, a state with a Freedom of Information Commission that has often interpreted state law in favor of public access, the closed budget meeting surprised some onlookers.
Klau said the closed session on the budget appeared to be an anomaly — “which made this meeting a big deal,” he added.
In an emailed statement, university spokeswoman Stephanie Rietz said the financial affairs committee did not make any changes to the budget in executive session. The budget and “highly detailed” pages of explanatory documents were posted online and made available to the media five days before the board meeting, she said.
But a local newspaper, The Day, published an editorial that said the budget was amended and finalized during the executive session, and by the time the documents were made available, there was little time for public scrutiny.
'The most violated laws’
“Open meetings laws are probably the most violated laws in the nation. [They’re] probably violated more than speeding laws,” said David Cuillier, longtime chairman of the Freedom of Information Committee for the Society of Professional Journalists.
Across the country, university leaders believe they are “outside the bounds of the law and of the fundamental principles of democracy,” he said. “It’s not just access to meetings, it’s a whole culture of secrecy that applies to access, to public records, and everything else on campus.”
Although most trustees approach their work in the public interest, sometimes boards and administrators can develop an aversion to the public witnessing discussion and disagreement among members, said Michael Poliakoff, vice president of policy for the American Council of Trustees and Alumni.
“Virtually all boards have a series of procedures for how and when they go into executive session ... but this must not be abused, and the guiding light should always be that free institutions thrive on transparency,” he said.
Access to university meetings tends to be cyclical — it changes in different times, particularly in response to economic fluctuations, said Mitchell Pearlman, a lecturer in law and journalism at UConn and a board member of the National Freedom of Information Coalition.
When there aren’t as many tough decisions to be made, the public and the media see more transparency, he said.
But when university budgets are tight — like at UConn, where state funding has decreased — and difficult decisions must be made, government, including public universities, increase secrecy, he said.
Public interest in university transparency increases during lean economic times as well, he said.
Universities typically don’t expressly violate open meetings laws, Cuillier said.
Instead, they might use tactics to follow the letter of the law, but not the intent of the law.
For instance, boards can call their meetings “retreats,” or debate via email, he said.
“A lot of it’s just fear and cowardice,” Cuillier said. “Bureaucrats who are afraid of being exposed and being questioned — but they work for the public, and they have to develop a backbone and do their jobs, which means being able to work in sunlight.”
In the past several years, a string of court rulings have gone against university trustees who excluded the public from meetings, at times without providing an adequate explanation as state open-meeting laws require.
Recently, Californians Aware, a California nonprofit, pursued litigation against the Pasadena City College board of trustees for violating the state’s open meetings law when it went into closed session to negotiate the severance agreement for its then-president, Mark W. Rocha.
The board did not inform the public of its full reason for doing so, said Kelly Aviles, an attorney and the vice president for open government compliance at Californians Aware.
“We’re seeing it a lot, where high-level executives are in one day, out the other, but when they leave, they’re taking tons of public money,” she said.
PCC officials claimed that a threat of litigation by Rocha justified closing the meeting, but failed to describe the surrounding circumstances — a violation of California’s open records and meetings act, Aviles said.
In California, boards can go into closed session under the statutory exemption for anticipated litigation, but the public must be made aware of the reasoning behind the decision, she said.
In this case, Aviles said, the only explanation of the matters being discussed in closed session was a note on the agenda that referred to “anticipated litigation.”
Los Angeles County Superior Court Judge Joanne O’Donnell decided for Californians Aware in a June 29 ruling, nullifying the August 2014 severance agreement between the board of trustees and Rocha.
The college was ordered to provide an explanation of steps taken to “unwind” the nullified 2014 severance agreement, or an explanation of their progress in reaching a new agreement in compliance with the law, according to the ruling.
Gail S. Cooper, general counsel for PCC, declined to comment due to the pending nature of the lawsuit.
“I think they wanted to control the outcome of the matter and do it with as little publicity as possible,” Aviles said.
In July 2012, the Supreme Court of New Jersey ruled that the Rutgers University Board of Governors violated state law by not providing enough information to the public regarding a 2008 meeting where the governors discussed a controversial decision to spend $100 million expanding the Rutgers football stadium.
The unanimous ruling tightened requirements on public bodies to post detailed agendas of upcoming meetings.
The court ruled that the notice the board gave for its closed meeting — that the governors would meet to discuss “matters falling within contract negotiation and attorney-client privilege” — was too generic.
State law requires notice of the subjects to be discussed “to the extent it was known.” The board knew in advance that subjects including the stadium expansion would be discussed, but failed to tell the public, the court wrote.
The court also ruled that the board improperly discussed information concerning proposed policy changes and reformulation of university guidelines in executive session. But the victory proved somewhat hollow; since no actual decisions were made during the unlawfully closed session, there was nothing for the court to order undone.
In a comparable case, a New York Supreme Court justice decided in March 2013 to vacate a decision by State University of New York trustees to close the Long Island Hospital in Brooklyn.
The court found that the trustees’ use of a vague notice, a “skeletal” statement of purpose in the written agenda and the use of a closed two-hour session the day before the public vote amounted to a violation of the state’s Open Meetings Law.
In February 2013, the Open Meetings Compliance Board of the Maryland Attorney General’s Office ruled that the University of Maryland Regents committed multiple violations of the state’s open meetings law in connection with two November 2012 meetings. At the meeting, the panel met in secret to discuss a move from the Atlantic Coast Conference to the Big Ten.
Even though compliance board rejected nearly all of the school’s arguments — including one insisting that the school did not have to notify the public of the meeting date because ‘rumors’ were circulating on social media — the board does not have legal enforcement power against the university for future meetings.
The fourth branch of government?
The Detroit Free Press brought suit against the University of Michigan Board of Regents in July 2014, alleging that the university routinely violated the state’s open meetings law.
This summer, the court decided against the newspaper. The Free Press is appealing the decision.
The paper’s analysis of the formal meetings of U-M’s Board of Regents found that there were public discussions on only 12 of the 116 matters the board voted on between January 2013 and February 2014.
Meanwhile, a state resolution sponsored by Rep. Martin Howrylak, a Republican, would require all meetings of public university boards to be open.
The resolution would be placed on the ballot in the upcoming general election if both the House and Senate approve it by at least a two-thirds vote.
Currently, state law requires only “formal” meetings to be open, and the law enables universities to decide what is formal and what isn’t.
In 1999, Michigan’s Supreme Court had established an exception to the open meetings requirement for university presidential searches in Federated Publications, Inc. v. Michigan State University Board of Trustees.
The court ruled that, as a constitutionally-created body, Michigan’s public universities are not subject to sunshine laws in the presidential search process, because enforcing that requirement would infringe the separation of powers between branches of government.
Michigan’s public universities, in effect, were the “fourth branch” of government, said Jane Briggs-Bunting, president of the Michigan Coalition for Open Government.
“Unfortunately, the language in the decision was pretty sloppy, and as one of the justices said in her dissent ... basically, by doing it this way, you’re opening the door for all but formal sessions to be held in secret, and that’s exactly what’s happened,” she said.
This has led to a lack of public input on big decisions, even beyond presidential searches, she said.
Universities tend to believe that “formal” applies solely to when they take a vote — other business can be conducted behind closed doors, Briggs-Bunting said.
A U-M statement said that the legislative proposal is “a solution in search of a problem that has been shown not to exist.” A university administrator testified against the proposal.
'Little rats in big bills'
While the United States typically has strong open meetings and records laws, the exemptions can “eat up” the rules’ effectiveness, Pearlman said.
Legislators often introduce proposed exemptions in bills unrelated to freedom of information laws, where they know members of the public and journalists won’t look for them, he said.
“We call them rats ... little rats hidden in big bills, and by the time you find out about it, the bill is so important to pass that no one will amend it,” he said.
This widespread practice leads to hundreds of exemptions that are not found in the open records and meetings laws themselves, Pearlman said.
In Florida — a state with a strong open meetings and records statute — as many as 1,000 exemptions to the law have been identified, he said.
In the Sunshine State, citizens have had a strong constitutional right of access to government records and meetings since July of 1993, said Barbara Petersen, president of the First Amendment Foundation in Tallahassee.
Florida’s open records and meeting law applies to two or more members of a board, while in other states, a quorum, or half of the board plus one, must be present, she said. The law also doesn’t allow for the balancing of interests that other states allow for in releasing records.
Despite all this, in the last legislative session, a bill was filed that would exempt the selection process for the president, provost, and dean of the public universities in Florida from sunshine laws.
It did not pass, but the provision has been introduced about four or five times since 1993, Petersen said.
In Alabama, the state legislature recently passed a bill that amends the state Open Meetings act to expressly forbid, without proper notice, meetings in small groups to discuss issues that will come before the full body. (The Alabama Supreme Court had ruled in 2012’s Slagle v. Ross that serial meetings — those involving less than a quorum of members of the full organization — do not violate the open meetings law).
Still, both the University of Alabama and Auburn University, two of the largest universities in Alabama, will be allowed to hold serial meetings when searching for university presidents, said Jim Rainey, publisher of the Tuscaloosa (Alabama) News.
This concession in the bill was an attempt to look at the greater good and keep the Slagle ruling from standing another year, he said.
“Allowing serial meetings to take place, for any governmental entity, and allowing it to be legal, just flies in the face of any idea of open government, and ultimately that erodes public trust,” he said.
The universities of Alabama and Auburn are the “cultural epicenters” of the state — many state politicians got their start in student government at these universities, Rainey said.
“So it is doubly important that the process of open government is practiced here, because it does have long-range, far-reaching impact in our state,” he said.
Rainey predicts a “constant struggle” to hold those who violate the law accountable, but he hopes to see more transparency as a result of the bill.
“Unchecked ... and unchallenged, boards dealing with controversial issues will inevitably try to operate in secret in some way. It eventually will happen, and that’s not unique to Alabama,” he said. “It’s not unique to universities. I think it’s human nature.”
Open meetings penalties lacking
As it stands right now, states generally have laws defining the public right of access to records and meetings, but no real method of enforcement other than the courts.
Cuiller pointed to Connecticut’s commission as an exception to the rule.
“If there was no penalty for speeding, wouldn’t you think most people would speed?” Cuillier said. “Of course they would. And that’s what we have in America. We have laws with no enforcement.”
Some states, including Florida, Texas and Washington State, can impose monetary penalties on FOI violators, but in most states, Cuiller said, the only penalty is the equivalent of a do-over — the closed-door decision is nullified, and can simply be redone.
“What we need are real harsh penalties that make it hurt to break the law,” he said. “Without enforcement, we could have the best laws on the books, but people may not follow them.”
When universities get away with holding their meetings behind closed doors, a sense of cynicism and distrust of government emerges, Pearlman said.
“That’s the way it works in oligarchies. That’s not the way it’s supposed to work in democracies,” he said.
Students see universities making decisions that affect their lives as students, and yet they can’t access these meetings where the decisions are being made, said Pearlman.
This leads to corruption of government and cynicism that pervades the public’s attitude toward government, he said.
“Secrecy breeds thievery and greed and poor choices, and transparency’s the best disinfectant to that,” Pearlman said.
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