TRANSPARENCY TUESDAY: As states retrench on openness of presidential searches, can journalists play "find-the-finalists?"



In their quest to conceal the selection of college presidents from the public's inquiring eyes, state officials are taking increasingly extreme and desperate measures. Even trying to pass retroactive laws that claw back information to which the public was once legally entitled. Even setting up multiple layers of private middlemen so that no government official actually lays a publicly accountable finger on a document.

Pretty soon, search committee members will start dressing up as the film crew on a fake 1970s sci-fi movie and sneak into town with phony Canadian passports.

And even where the law clearly allows the public time to inspect the credentials of presidential finalists, states like Texas and Georgia have figured out a way to make that right meaningless: The "finalist pool of one."

Over the past 20 years, state legislatures have eroded the public's right to attend the meetings of, and view the documents gathered by, presidential search committees. It is now increasingly common for the hiring of a president to take place with no more openness and accountability than the hiring of the guy who mows the president's lawn. Even though being a college president is like being the mayor of a mid-sized city, complete with command of a police force and oversight over hundreds of millions of dollars in investments and pension funds.

The primary argument against openness is the widely stated belief that "good candidates" will not risk souring their current employment relationships by letting it known they're interested in leaving. That assertion is rather easily deflated.

First, ask any member of the selection committee in an "open" state -- or any president whose appointment was the product of an open search -- whether the process produced a loser. If the answer is "no" (and it's always no), then where's the problem?

More to the point, by the time a contender makes it to the final round of consideration, it's unlikely that any reasonably diligent search committee hasn't already contacted the current employer. And if the candidate has gotten to the brink of accepting another presidency without telling anyone back home, then your school's about to hire President Sneaky McJob-Hopper.

(Try this logic in your personal life and see how well it works for you. Try dating only married men on the theory that a "good" man wouldn't leave his wife before agreeing to get engaged to you. Yeah, it's like that.)

On the other hand, there are powerful practical arguments for openness.

One is the opportunity to vet candidates -- and to bring to light possible shortcomings or scandals overlooked by the search committee. People with inside knowledge about the candidates' questionably legal hobbies need time to come forward, before it's too late. Another is the ability to confirm that a diverse pool of candidates received serious consideration -- an assurance that the public is denied when the "finalist list" stops at one.

Openness is always the less expeditious way of doing business, but government is not built for the comfort and convenience of its officials. It is a good thing, not a bad thing, that the public has a chance to ask a Winthrop University presidential finalist now -- and not after she's hired -- about whether she played a role in the controversial decision to sue a student blogger who criticized her performance as provost at Butler University.

So, if state officials make up their minds to play hide-the-finalists, is there anything journalists can do?

First, know -- and use -- even the limited rights that the law affords. Almost every state permits at least some minimal level of access to information once the search process has narrowed to the final round. If journalists don't demand the disclosure that the law allows, even where the decision seems preordained, then decision-makers will rightly assume that nobody's watching.

Second, get creative and think about what secondary and tertiary public records might give away the search committee's secrets. Use freedom-of-information requests to get the schedules and appointment calendars for government officials who sit on the committee (or for any possible in-house candidates). See if university credit cards have been used to book hotel rooms or flights for visiting dignitaries. If the college has its own fleet of airplanes -- and a surprising number do -- ask for flight manifests and logs, to see which VIPs have been chauffeured into town. Find out where the committee meets and camp out at the exits.

And third, consider legal or legislative action. If state law does not clearly foreclose access to presidential search meetings and records, the courts have historically been quite receptive to lawsuits seeking greater openness. In years past, journalists in ArizonaGeorgia and Michigan have won legal challenges to compel presidential selection bodies to conduct business in the open (though some of those victories were short-lived, as legislators responded by narrowing access laws). And if your state is among those with weak access laws, use your editorial page and contacts with state press associations to advocate for reform.

If there is a cultural norm that "good candidates" won't compete in open presidential searches, then it is a norm only because enough states allow it to persist. If publicly accountable searches instead become the norm, the culture will acclimate to it just as the judiciary -- with, ahem, conspicuous exceptions -- has become acclimated to doing business under a watchful public eye.

For more information, consult the Student Press Law Center's guide to the law of executive searches and state-by-state listing of laws governing access to search proceedings. 

Tagged: Butler University, newsgathering, open-meetings, presidential search, public meetings, search committee, Transparency Tuesday, University of Wyoming, Winthrop University