North Dakota introduces bill to exempt university leadership applicants from open records law

NORTH DAKOTA—A new House bill could make the applications for top positions in North Dakota’s state universities exempt from the open records law.

HB 1333, which was introduced to the House Education Committee on January 16 and discussed in a committee hearing January 23, would exempt any record that identified an individual applying for the position of commissioner of higher education or president, vice president, provost, dean, athletic director or head coach at a state university from the state open records law.

These records would only become available once the hiring authority narrowed down the candidates to three or fewer finalists. Prior to that, the hiring authority would only be required to disclose the number of applicants or candidates for the position to the public.

Officials representing the state’s news organizations are opposing the bill on the grounds that it conflicts with the need for transparency.

Rep. Rich S. Becker (R-Grand Forks), the primary sponsor of HB 1333, said that the bill was intended to ensure that top candidates were not deterred by the current requirements of the open records law, according to an article by the Grand Forks Herald.

"People of a high-caliber nature are reluctant to open themselves up to open records and have the press either build them up or vilify them, whatever the case may be," he said. "And that certainly hurts them where they currently are, relative to their current institution finding out they're looking for a position."

The bill requires that the hiring authority give the three or fewer finalists 14 days notice of when their records will be made public, during which time they can withdraw from consideration for the position.

"If at some point, if you become a finalist, then the public, I believe, has the right to know who you are," Becker said.

North Dakota Newspaper Association executive director Steve Andrist testified against the bill and is now working with the bill sponsors to try and amend the provisions.

“We think the law that we have now is best and we don’t think it should be changed,” Andrist said. “But the reality is that there’s a lot of appetite for change among our public officials in the legislature and in the executive branch as well. So, in the spirit of compromise, we’re looking at trying to get them to accept that if they try to reduce the number of positions that the new bill covers, and increase the number of finalists whose name would become public, it might be something we could live with.”

Senate Bill 2152, introduced by Sen. Lonnie Laffen (R-Grand Forks), seeks to apply similar principles to all government jobs across North Dakota. The bill, which was heard on Friday, would make the records of applicants to any vacant position at a “public entity” exempt until the search was narrowed down to three finalists.

Andrist, who also testified against this bill, asserted that its provisions are even more concerning than those of HB 1333.

The State Board of Higher Education voted to support both HB133 and SB 2152 during its meeting Thursday.

Dr. Lisa Felder, chief of staff for the North Dakota University System, said this issue has concerned the board for years. A previous version of the bill was killed in the last legislative session after the primary bill sponsor included the position of K-12 superintendent at the last minute.

“It’s been on their minds for quite a while because we haven’t received applications from sitting presidents for a lot of positions at our institutions,” Feldner said. “I’ve only been here for three years but in those years I think we’ve filled four positions and only one was a sitting president.”

Becker cited the University of North Dakota’s search for a new president last year as proof of the need to exempt these candidates’ records. According to an article in the Grand Forks Herald, forty people applied for the position of president of UND in January 2016, but three dropped out because their names would be disclosed due to the open records law.

“Personally I don’t see that it causes a problem, but there are a lot of people who disagree with that,” Andrist said. “They say it has a chilling effect. The point that the people on the other side make is that … if people know that their names are going to be public and information about their application will be made public they’ll be reluctant to apply. There’s no direct evidence that that’s the case, but they provide a lot of anecdotal evidence that they believe corroborates it.”

Feldner said that one of the position search firms, AGB Search, frequently found concerns about the open records law were preventing potential candidates from applying for top positions.

At the urging of private headhunting firms that increasingly control the executive selection process, a number of other states have similarly restricted public access to the names of top university candidates.

For instance, in New Mexico, the identity of an applicant or nominee for president of a college is exempt, but the names of at least five candidates must be released at least 21 days before the selection is confirmed.

In Georgia, the records of candidates for president are kept confidential until 14 days before the selection, when the public is entitled to the names and qualifications of “as many as three” finalists, though in practice “as many as three” often turns out to be “one.”

However, North Dakota’s proposed law is broader than most because it applies to positions below the level of president.

Andrist stressed that it was in public interest for these records to be open.

“Our whole point is that these are people that are being hired to represent members of the public and the public ought to have some access to information about who’s being considered and who’s being dropped from consideration,” Andrist said.

Feldner insisted that the state needed to prioritize finding top quality candidates, and rejected Andrist’s proposal that the hiring authority make the records of half the number of applicants for such positions public rather than three in order to remain transparent.

“This need for confidentiality is much more important,” Feldner said. “There will be some kind of a compromise but it certainly won’t be half.”

Both SB 2152 and HB 1333 are currently under review; no further hearings are currently scheduled.

SPLC staff writer Jessica Kelham-Hohler can be reached by email or (202) 974-6317

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