January 21-22, 1994
01-21-1994
Pages 54-71
BOARD OF REGENTS
UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA
January 21, 1994
The Board of Regents met on January 21, 1994 in the Computing
Center Video rooms on the University of Nevada, Reno Campus, and
the University of Nevada, Las Vegas Campus.
Members present:
Reno : Dr. James Eardley, Chairman
Dr. Jill Derby
Mrs. Dorothy S. Gallagher
Mr. Daniel J. Klaich
Las Vegas : Mrs. Shelley Berkley
Mr. Joseph Foley
Mr. Madison Graves, II
Dr. Lonnie Hammargren
Mrs. Carolyn Sparks
Mrs. June Whitley
Alabama : Mrs. Nancy Price
(telephone)
Others present : Interim Chancellor John A. Richardson
President Anthony Calabro, WNCC
President John Gwaltney, TMCC
President James Taranik, DRI
General Counsel Donald Klasic
Interim Vice Chancellor Karen Steinberg
Secretary Mary Lou Moser
Chairman Eardley called the special meeting to order at 4:05 P.M.
Friday, January 21, 1994, for the purpose of discussing the Chan-
cellor's search.
1. Discussion on Chancellor's Search
Chairman Eardley stated that candidates for the Chancellor's
position had been notified by registered mail that an At-
torney General's ruling has decreed that all applicant names
must be made public at the beginning of the search rather
than waiting until finalists had been selected, but if ap-
plicants were not aware the search must be open, they could
be so notified. Letters were sent stating that applicants
had until January 21, 1994, if they wished to withdraw from
the search; otherwise, the files would be open to the pub-
lic. He related the Committee had worked diligently and
the Board was now at the point of deciding whether to con-
tinue or discontinue the search. He asked that all Board
members express their thoughts on the subject and reminded
them that the ultimate goal was to choose an outstanding
leader for higher education for the State of Nevada.
Mr. Graves, Chairman of the Committee, read the following
statement:
Mr. Chairman, it gives me great pleasure to be here
today. Mr. Chairman, as you recall, some three months
ago you appointed a five-member committee with myself
as Chairman, with Regents Berkley, Derby, Sparks and
Gallagher to conduct the search for a new Chancellor
for the University and Community College System of
Nevada. It was an honor to accept the role as Chairman
for this most important task.
In my brief tenure as a member of the Board it is
evident to me, the most important task before this
Board in order to influence the direction that higher
education takes in the State of Nevada, is our ability
to select and appoint the Chancellor of the System and
the individual Presidents of the member institutions.
It is this charge that I take most seriously.
Upon the close of the search for applications our
Committee received a total of 73 applicants and
nominations. With the revelation upon being chal-
lenged by the "Las Vegas Sun" and subsequent opinion
from the Attorney General's office that all applicants
were to be made public, this Committee, to date, has
received 20 letters of withdrawal. This equates to
27% of the original 73 applicants that said they would
not consent to their names being released to the public
unless they were being considered as finalists. This
tells me, and I believe should tell this Board of Re-
gents, that something is seriously wrong with the proc-
ess. It is also common-sense reasoning that those de-
clining to have their names released in the earliest
stages of the search would have the most to lose, such
as job security, future promotions, etc.
This Committee has recently been charged with allega-
tions that this search would be conducted in secret
with no input from the public, when in fact is has
always been the intent of the Committee and the Board
to select at least five finalists for this position.
At that time the names would be released to the public,
the remaining candidates would be invited to each and
every Campus, to be introduced to and interviewed by
the advisory committee on that Campus, comprised of
Presidents, Faculty Senate Chairmen and Student Body
Presidents. The recommendation of the advisory com-
mittee would be taken seriously by this Committee,
whereupon at the conclusion this Committee would make
a final recommendation to the full Board of Regents
for their consideration. Having gone through this
process I would have hoped against all hope that all
members of the press and the public at large could
see that this is an open and fair process and equitable
to our constituents, the System, the institutions and,
please, let's not forget, the applicants.
Nevada's law requires that all members of the Board are
elected and not appointed; therefore, if our constitu-
ents feel the Board is not representative of their be-
liefs, they have the ability to remove us from office.
In other words, the public has input as to who their
representatives are in selecting the finalists. Is it
better that members of the Board, elected by the public,
select the finalists, or is it better for the press to
select them for us? I believe that this is the ques-
tion before us today.
Having 27% of the applicants withdraw, tells me some-
thing is wrong. I believe that these applicants have
the right to privacy without jeopardizing their current
positions until they are at least the finalists in
the process. I would like to stress that our Committee
is in no way implying that the remaining 53 applicants
are not qualified for this position, but we do imply
that in all probability we have lost some very quali-
fied candidates who in all likelihood would have been
finalists. This Committee's mandate was to bring forth
to you, the full Board of Regents, the best qualified
candidates possible. Under the current circumstances
our ability has been severaly handicapped.
It is because of this belief that to properly guide the
quality and direction of higher education in the State
of Nevada that we, as Board and Committee members, must
have the ability to seek and select the most qualified
individuals for the respective positions. The law
under which this Committee must now operate ties our
hands behind our backs and makes it impossible to do
the jobs that we were elected to do. I am being candid
when I tell you that I feel that our Search Committee
has been compromised, and I implore you as Board mem-
bers to make a stand for what is in the best interests
of our System.
Our Committee requested and was given a budget of
$45,000 to conduct this search. We have spent to date
a total of $6,345: $5,500 in advertising in the
"Chronicle of Higher Education", $495 in postage, and
$350 in office supplies. This is a small price to pay
to insure that we have the ability in the future to do
the job that we have been elected to do. It is my
opinion, and that's shared by a majority of the Search
Committee, that we terminate this Chancellor's search.
I believe we need pause to explore, to reevaluate the
situation, before going forward. If we don't terminate
this search today, the 53 remaining applications become
public this coming Monday morning, at which time I feel
we would be forced to proceed.
Mr. Chairman, that concludes my report.
Mrs. Berkley stated this meeting to her was an irony in
that she has been and continues to be in favor of open
government and a great advocate of our Open Meeting Law.
She continued that she was in an interesting position at
this time, that this search has been compromised by making
it open at this point in the deliberations. At the last
meeting she stated the Board should thank the Attorney
General for her opinion and put it in the drawer and pro-
ceed.
Mrs. Berkley continued that what the Board had at that time
was a request from a reporter asking to have the names.
At that meeting the Board had a choice of going forward with
the search, which she had recommended, or, taking the advice
of Mr. Klaich and going ahead, waiting three weeks, noti-
fying all of the applicants that their names would be pub-
lic, and giving them an opportunity to withdraw their names.
If the search had continued without making the names public,
the press, if it wished, could have sued and the controversy
could have been determined by the courts.
At that time, Mrs. Berkley stated she was told the Board's
opinion that this search should not be subject to the Open
Meeting Law at this early stage would be given better
strength and validity if it had some evidence to back up
the fact that this search might be compromised if it were
opened. The results are now that 27% of the applicants have
been lost, some of which are highly qualified and competent
applicants. She felt that losing even one applicant who was
qualified was a disaster because that might be the best ap-
plicant to lead this System forward into the next century.
She related that she was also told at that time that if
there were a number of applicants to withdraw their names
it would give further credence to the fact that this had an
obstructive effect on the search and this could be made
known to the Attorney General and perhaps the opinion would
be reconsidered on the basis of this information.
Mrs. Berkley stated that Mr. Klaich, who at that time argued
for waiting to see whether there would be withdrawals to the
search, has written a lengthy letter to the Board stating
that as long as there are any qualified applicants left, the
search should continue. She stated she agreed with Mr.
Graves that the Board should obtain the most qualified can-
didate possible to lead the System, and if a number of good,
qualified candidates are lost, then there is a problem.
She continued that the Board is elected, representing con-
stituents, and there must be a trust factor in allowing the
elected officials to review applications and make decisions
on the first and second cuts until a number of finalists is
determined to be presented to the Board for consideration.
She stated that she takes this job very seriously. She had
asked the staff for information on searches from other
states and related that one of the worst cases occurred
at the University of Florida in a Presidential search.
In that instance, the names were made public and the media
went on a frenzy and conducted the search instead of the
Regents. Every single applicant's Universities or Colleges
were contacted, Administrators were interviewed, Deans and
faculty were interviewed, and whatever good, bad or ugly
about the particular applicant came to light, it was pub-
lished on the front page of the newspaper. And that was
before the Regents ever had an opportunity to discuss and
review any of the applicants. She stated that she could
not say that the same thing would not happen in Nevada.
And that would abdicate her reponsibility to do her job as
a Regent if it should happen.
Mrs. Berkley stated that she was confused as to how to
continue. She stated she felt it would be a serious con-
flect of interest to take the matter back to the Attorney
General for reconsideration, since the Attorney General
is now an applicant. (Note: the Attorney General herself
made her candidacy public.) She stated that unless some
very persuasive testimony is offered today, she would vote
to abort the search, which she would do with a very heavy
heart, but the alternatives were more distressing to her.
Mrs. Sparks stated that she has studied both sides of the
question before the Board, she has read editorials and
articles and clippings, and heard other opinions. She had
re-read the duties and obligations of the members of the
Board of Regents as elected officials, and has reviewed all
the applications which had been received, and was disap-
pointed when some withdrew, but felt that there are many
fine candidates left, and those who are left have agreed to
a public search. At this time she feels that it is in the
best interests of the citizens of the State of Nevada and
to the University and Community College System to move
ahead with the search with great dispatch, but with care-
ful consideration, and to do the job of selecting the next
Chancellor. In her opinion, the System cannot afford at
this time to be without a permanent, strong, qualified lead-
er at the head of the System. Any change in legislation in
the future can be done under the leadership of this strong
person, and who has been a part of this legislation. She
stated she was not happy with the process the Board would
have to take, but there are many fine people who are will-
ing to become part of the process and she would support
continuing the search.
Dr. Derby also read from a statement:
This is one of the most important issues that we've
discussed in a long time, or will be discussing in
some time to come. It has to do with the leadership
in the future and it has to do with taking a step
towards openness or a step away from openness.
I believe there might be a time to abort this search,
but I believe it's not today. Excellent candidates
remain and this Search Committee has not even met to
discuss them. I also want to add that the Search
Committee has also not met to discuss aborting the
search. I think it is premature to talk about abort-
ing this search. If we can't achieve a consensus about
a candidate after we have been through the candidates
as a Search Committee to put out to the Board and to
the rest of the higher education community, that's the
time to abort the search, not when some highly quali-
fied candidates remain in this search.
I want to describe my process to you. As a member of
the Committee we received the folders of the appli-
cants, and our staff, and we have been very well
served by our staff, had divided them into three cate-
gories of qualified, not qualified and qualified, but
questionable. I went through all of the applications
and in all cases agreed with our staff recommendations.
So, I went to the qualified stack and went through and
did my own division as one member of this Committee
into the categories of promising, not as promising,
and most promising. And, out of that process I came
out with lists from which I have deleted names that
have called us, or notified us of their wish to be
withdrawn from the search. And I have remaining a
list of 19 who are in the promising and most promis-
ing classification. Now, that is just one member of
the Search Committee and that is what I would be bring-
ing to the Committee for our deliberations.
I would submit that when we still have highly quali-
fied people and qualified candidates it is no time to
abort a search. I think the argument that some of our
highest quality candidates have withdrawn has some
merit, but also has some weakness. I think that any-
body that's been through a search knows what you see
on paper can tell you very little. The initial cut
has to be done, but when you have been through a
search you know that it is not until you do the back-
ground checkup, you get the references, and that you
ultimately meet people, that you really have sense of
the quality of a candidate. And, in fact, some of the
names that were suggested that were of our highest
quality, and I know something of the System and know
that the poor performance is what is causing them to
leave. So, I would submit that you can assume that I
could make, in fact, a pretty strong case that open-
ness, rather than deterring all the good candiates, or
most of the good candidates, might to the contrary
flush out weak candidates. You know that if you have
a strong job performance where you are, no one wants
you to leave. And, I would submit that we have a very
good example of that here in UCCSN, rather recently,
when there were rumors that a strong President was
being courted elsewhere, and we did what we needed to
do to keep him here. And, I think if you have strong
performance, and are strong where you are, that it's
not such a dissuasion to you to participate in an open
search.
I think it could also be argued that you are more like-
ly to get candidates committed to openness and committed
to working in an open environment when you participate
in an open search. There's good evidence suggesting
that effective searches can be done in the open, and I
would point most recently to the search that the Legis-
lature did for the search for its Executive Director,
which was done entirely in the open to the skepticism
of some of the Legislators that participated in that.
They had 200 applicants to that position, and in the
end, when asked whether or not it had worked, Legis-
lators who were at first skeptical said, "Yeah, an
open search works." And, I would suggest to you that
there is not that much difference between those who
apply to be Executive Director of a Legislature and
those who apply to be a Chancellor.
I want to say a little bit about interim leadership
because I think it has some drawbacks. I think it
puts this System on hold and in limbo at a time where
we can ill afford it. We are very fortunate to have
an extremely well qualified Interim Chancellor tempo-
rarily at our helm, but interim is interim. And par-
ticularly one who intends to remain on the Chancellor's
staff, and thus one who cannot take risks and make the
kinds of significant changes that are needed in this
System. You cannot expect a person in an interim pos-
ition to make those kinds of significant changes that
are needed. So, I think we are talking about delaying
significant change that is long overdue in this System
for about three years. And let's not kid ourselves
about the length of time we're talking, because if the
goal of this would be to try to get the Legislature
to make an exemption for the Regents, we know that
decision couldn't come about until late next Spring,
probably to be effective the following October, which
means that if we were to start a search then we're
talking about June, 1996 when somebody could come on
board and start getting in swing with UCCSN. So, let's
not kid ourselves that we are talking about a short in-
terim period here. We're talking about a long interim
period.
And what about other searches that are on the horizon?
What do we do about those? And what do we do about
Academic Affairs which is seriously understaffed? We
are overworking our staff in Academic Affairs, and we
have a terrific staff and they are doing everything
they can, but they are understaffed for what they have
to do. I would remind you that nearly a year ago at
our workshop that we asked that two of our Strategic
Directions, which are the priority of this Board, be
given particular attention, and that has not been able
to be addressed, and little progress has been made
simply because there isn't time with everything else
that has to be done.
I think we have to look at what we are doing here and
what we are really debating here has to do with comply-
ing with the Open Meeting Law, and whether or not, be-
cause we can't do it the way we always have done it,
we will refuse to do it at all. Nevermind that it puts
our System on hold for three years, and nevermind that
it's the law. That's what we are debating. The Open
Meeting Law is there for a reason, and the track record
of this System in relation to that Open Meeting Law is
not so good. The last thing this Board needs to im-
prove its public image in this State is one more in-
stance of being above the law and aborting an important
and viable search rather than comply with that Open
Meeting Law.
When we have many good candidates remaining the case
cannot be made that it has destroyed this search. I
would agree that we have lost some candidates, and
probably some good candidates, but it has not destroyed
our search and we remain with many qualified and prom-
ising candidates. And the Search Committee has not
even met to consider the qualified candidates whose
applications we have. It's a disservice to them and
to our need to move forward to attempt to avoid com-
pliance with the law by prematurely aborting this
search. We may just have to adjust and learn to con-
duct all our business, including our searches, in the
open. If that's the law, let's comply. There is a
very strong reform impulse in this nation about open-
ness in government, about accountability for elected
officials. Let's not be dragged kicking and screaming
into that reform. Let's welcome it and move forward.
You know this has been a difficult issue for me this
week as well, because it seems to pit two very important
values that I hold, and I believe the Board holds, very
dearly. On the one hand is our responsibility to pro-
vide good leadership for this System, as Regent Graves
said, one of our primary roles. On the other hand is
our obligation as elected public officials to conduct
our business, which is the public's business, in the
open. We are not a private company. We must work in
the open. Some may opine that we cannot perform the
one value of securing good leadership without violating
the other value of working in the open. And, I would
say that's not true. And I would suggest to you that
my list of promising and most promising candidates is
what proves that case that we can do it in the open
without compromising our responsibility toward securing
good leadership. At least that case has not been made
yet. There may be a time when we would decide to abort
this search, but I would submit that time is now now.
And if the Legislature can conduct its search for an
Executive Director in the open, I'd submit to you so
can the Board of Regents.
I have one final thought I would like to share. This
search got distracted around the candidacy of one
Nevada applicant whose candidacy has been debated in
the press but never by the Search Committee. I would
like to remind this group that anybody can apply for
the position of Chancellor and it is up to the Search
Committee, comprised entirely in my view, of competent,
capable, caring and conscientious people to weigh the
competency and quality of all the applicants that come
before us, and then recommend a small pool of the best
in our judgement for the consideration of the higher
education community. Suggestions that anyone's mind
has been prematurely made up without the discussion
and deliberation of the Committee, have offended me
deeply. Any candidate who applied competes with every
other on the basis of his merits, his character, his
experience, his vision, his ability. That process has
not had a chance to happen yet, and it should. That
process can take place if we decide to move ahead with
this search with the qualified candidates that remain
for Chancellor. There may be a time to abort, but it
isn't today. It is only after the Committee has met
and considered the qualified candidates that remain in
a thorough way, and then decides that there is no one
who meets our needs to head our System. If we can't
find such a person, then let's abort our search. Not
today merely because we do not like what the law says
that we must do. I urge all my colleagues to vote to
continue this search and comply with the Open Meeting
Law.
Mrs. Gallagher stated that this probably is one of the most
difficult meetings this Board has had to face. She stated
she felt the people on the Search Committee, although they
disagree, are very conscientious in what they have said and
what they believe. She continued that she has a concern
with the search, not because of the people involved, but
because of the process, and when the Board is faced with
probably a number of searches very shortly, she felt the
process should be re-thought. Mrs. Gallagher stated she
was not above the law, and she did not intend to say that
she did not think the Board should not follow the Open
Meeting Law; however, she felt there have been other groups
that have been given this kind of break. She would like to
have the matter researched in the hope that a process could
be formed which would be fair, which would encourage high
quality candidates and that good candidates would not be
shut out because of the process. She stated she would
support stopping the search now with the idea that the Board
would very diligently research the process and obtain a
process which would be fair to those willing to stay in the
process, but also be fair to those nominated or who applied
with the understanding that the search was confidential.
She stated she is certain those who have spoken believe in
their stands, but urged the Board to think about the prece-
dence it was setting for the future.
Mr. Graves clarified that the reason the Search Committee
has been unable to meet is that because another part of the
Open Meeting Law stated that applicants had to be given a
21 working day notice before they could be discussed in
closed session. That notice was given and the first pos-
sible meeting that could happen was February 3, 1994.
Mrs. Berkley, in response to Dr. Derby's statements, stated
that her position was that she had disagreed with the At-
torney General's decision from the start, she did not in-
terpret the Open Meeting Law as did the Attorney General.
She stated that the Attorney General's opinion has not been
determined by a court of law, it is only an opinion, and the
Board would be complying with an opinion from one who has an
invested interest in the outcome. Therefore, she felt the
opinion is doubly suspect.
Mrs. Sparks asked General Counsel Klasic whether the search
could be stopped at any time should it be found the process
was impeding the decision to make a good selection? General
Counsel Klasic responded by first clarifying that this dis-
cussion is not about the Open Meeting Law, but the Board is
dealing with the Open Records Law, which is an entirely dif-
ferent statute with entirely different procedures and re-
quirements. With respect to the question asked, General
Counsel Klasic stated that a search could be closed at any
time short of making an offer to a candidate.
Mrs. Berkley stated that General Counsel Klasic had stated
that it would be important to be able to go back to the
Attorney General armed with evidence that if a large number
of applicants dropped out the search had been impeded.
General Counsel Klasic stated that no one has asked for
alternatives of what could be done as yet, but this is the
reason for this meeting: to determine the next steps once
these vital facts had been achieved.
Chairman Eardley agreed with General Counsel Klasic, then
asked that the other Regents comment.
Mr. Klaich stated that three weeks ago, the Board was dis-
cussing the search and all he had said then was basically
it was premature to stop the search and why was it being
considered? Three weeks later there is some additional
evidence, but meantime not only is there additional evi-
dence but everyone is running around spouting opinions and
chatting with each other about what to do with the search,
and some sort of consensus seemingly formed that this
search will be stopped. It occurred to him that he felt
this search would be steam-rolled and the search stopped,
therefore, he set forth in some detail his opinion on the
matter. He said he had not changed his opinion at all.
Mr. Klaich stated he felt Dr. Derby's comments left little
for him to discuss. He had set forth his comments in a
letter which he has asked be a permanent part of the record
for this meeting (filed with the permanent minutes). He
stated that the law is the law and he wanted to focus only
on something that had not yet been expressed, and that is
the priorities of this Board. If the priorities of the
Board are to haggle with where it is with respect to the
law, how to comply, how to challenge or change the law, how
to conduct the searches, then the Board should vote on the
matter and make it a priority. However, if the priority of
the Board is to get back an appropriate share of funding
for higher education in the State of Nevada, to get some
long overdue raises for the employees, to get some relief
for the students who are jammed into classrooms, to try to
avoid caps on education, and to do the real job they were
elected to do, then work should begin on those priorities,
and conduct a search with the many qualified candidates
identified by Dr. Derby. He stated that Dr. Derby makes
the strongest point possible that there may be a time to
abort the search, but it is not now and it is not today.
Mr. Klaich stated that the phrase "abort the search" is an
empty phrase because it has no promise of what happens
afterwards; no one has given a hint of what to do next, and
the reason for that is obvious, no one can tell the Board
what to do that makes any sense: challenge it in court and
hold the Board up to ridicule? or go to the Legislature and
subordinate the Board's key priorities while getting the
Open Meeting Law changed? There is no answer, abort and
then what? He urged the Board to comply with the law, take
a step forward, and comply with openness in government.
The law is clear.
Mrs. Whitley stated that having chaired both a Chancellor
and a Presidential search she realized the importance of
having the applicant's names remain confidential. She
stated there had been a lot of rhetoric, but felt that
when the search was down to the finalists, they should be
publicized. The leaders of the System community and
community leaders would be able to interview these final-
ists, it was time enough for them to help the Board select
the person to lead the System or one of the Campuses.
Continuing, she stated that speaking of John Richardson
being an Interim Chancellor, that is only a descriptive
word, a title. She stated that Dr. Richardson had acted
with full authority from the Board, and is carrying on
business as usual and is doing the job very well, and is
doing the job of Chancellor. The title is irrelevant.
She continued that in her opinion the search should be
aborted until a decision is reached to have the applicant
files confidential until the process gets to the finalists,
at which time they should be made public.
Mr. Foley congratulated the Committee members for their
work, rationale and serious throught on the matter. He
offered an alternative suggestion. He felt that those who
had withdrawn were perhaps conditional, but that some of
the Committee had stated there were a large number of
educators who had applied for the position, and he would
like to make them public because they would be willing to
come to Nevada and join the Board's mission to higher edu-
cation. However, he felt that to do so would be a breach
of confidentiality for the candidates of this and any future
search to be conducted and may inhibit the response of
candidates. He suggested that the Board could wait the 3
or so years, get legislation and obtain an opinion of the
court. He urged the Board to file a friendly suit now and
not wait for a change in legislation. Mr. Foley stated he
was not defiant of the law, but wanted to make the law work.
He added that he did not see how the Attorney General could
ignore the recent Arizona decision, 1991, which is so simi-
lar to the Nevada situation, but adopt an earlier -- 1981
or 1982 -- Alaskan case which is foreign to the Nevada case
in that it was a city position.
Mrs. Berkley stated she agreed with Mr. Foley's views of
these two cases, that the Alaska case is foreign to Nevada's
case, and the Arizona is the same as ours where confidenti-
ality can be observed up to the finalists.
Mr. Foley recommended that the Board proceed with the search
and notify the candidates who had withdrawn that the Board
would not keep their names confidential but would continue
the search with their names included. Mrs. Berkley stated
this was the same thing she had asked of the Board three
weeks ago, but now 27% of the candidates have been lost.
She questioned whether a second letter to the candidates
might not be confusing. Mr. Foley stated that he felt it
would be impossible to put officer searches on hold for
three years or more. Therefore, he felt that since there
are no criminal sanctions for the Open Records Law, the
only thing that could happen would be a challenge in the
courts which would give the Board an opportunity they might
not have for another four years.
Mrs. Price stated the Board was discussing 27% and she would
prefer to look at the 73%, and referred to the Attorney
General's opinion and looking at what was a "significant
number". Therefore, she would recommend talking about 73%
remaining in the pool. Secondly, the idea of going to the
Legislature asking for an exception for the Board, in her
opinion, is impossible, because of legislative intent since
they had made their own search public. Thirdly, she felt
that while there were a number of important matters the
Board might challenge in court, this would not be one of
them. She reminded the Board that General Counsel Klasic
at the last meeting had stated that the trend in the country
was not toward closed, but rather toward openness in govern-
ment. Mrs. Price stated that in her opinion the quality
candidate would appreciate that process. Finally, she felt
that the Board's greatest challenge is the reputation of
the System and the institutions. She related that even
though the Committee expenditures are just over $6000, each
of the applicants left has spent time, energy and emotions
in thinking about a change in their lives. She felt that
if the search is aborted, then have changes made later on,
the reputation of the search in the future would be jeop-
ardized. Mrs. Price continued that having an Interim
Chancellor is business as usual, and major changes needed
in the System would not be done until a new Chancellor is
chosen, and a number of changes need to be made now. For
her, she stated that anyone pulling their name from the
search was not for open government and the System they were
going to work in and therefore it should be dealt with now.
Mrs. Whitley responded that John Richardson did not neglect
his duty in evaluating his employees, rather he said that
he had only been Chancellor for a short period of time --
six months -- and had combined his evaluation along with
former Chancellor Dawson's.
Dr. Hammargren stated he believes in open meetings and open
records laws, and he doesn't believe in challenging the law
just because each individual might believe himself to be
smarter in interpreting it. He related that he felt John
Richardson is doing a great job as Chancellor -- and, in
fact, he might consider staying if he got used to it while
the Board is in the process of debating the issue, with
Mrs. Berkley stating she hoped he could last through this
debate. Dr. Hammargren stated that he does not like the
term "abort", the inflammatory nature and the emotional
nature of a lot of the discussions so far, and that the
appropriate word is "terminate". He continued that he
felt more "pushed" and lobbied on this issue than any other
in the five years as a Board member. He did not agree with
the comment that the Board has an opportunity for a "de-
lightful" lawsuit; that the Board is too litigious, whether
the suits were begun by someone else, and he has heard more
discussion of law suits as a member of this Board than at
any other time in his dealings. Finally, he stated he would
like to go with the majority of the Committee who has looked
at the matter, and that the Board should wait, that there
may be alternatives for the Search Committee to explore and
could preserve the confidential integrity until the final
list is determined.
The Chairman called on General Counsel Klasic to review
alternatives this Board may have at this time. General
Counsel Klasic stated he had been requested by the Chair-
man and Chancellor to explore alternatives to the Board
for discussion purposes, resulting in five alternatives
with Mr. Foley and Dr. Hammargren adding a sixth and
seventh.
1. Continue the current search with the remaining members
of the applicant pool, which would require release of
the names of the individuals in the pool in accordance
with the Attorney General's recommended opinion, and in
the fact that these people have in essence given their
permission for their names to be released. In terms of
potential liability that is the least liable problem.
2. Discontinue the search, basically institute the search
anew with the theory that because of the evidence de-
veloped as to the harm that the search in the initial
stages presents, that the names not be released in the
initial stages but that the names on the final lists
will always be made public, and just see what happens.
Several things might happen, one is the search might be
completed without difficulty, although that is prob-
ably unrealistic. A more realistic possibility is the
Board probably would be sued.
3. Discontinue the search, start over anew, make the deter-
mination that the names would not be released and file
a preemptive strike, mainly a declaratory relief action
naming perhaps some news media outlet as potential
defendants.
4. Discontinue the search, go back to the Attorney General
with the evidence collected, request a change of opin-
ion, and act accordingly. If the opinion is changed,
the Board would act accordingly, or if the opinion is
not changed, the Board could follow that. This could
still lead to litigation again by some news media
outlet.
5. Discontinue the search, put everything on hold, go to
the Legislature for a law change, and depending on
that outcome act accordingly. If the Legislature does
not change the law, the Board would probably have to
follow the Attorney General's opinion. There probably
would be a good deal of pressure from the news media
at the Legislature should a change in the law be
requested.
6. Regent Foley's suggested alternative to stick with the
search, take the position of not releasing the names,
invite those who have withdrawn their names to continue
in the search, and proceed accordingly.
7. Regent Hammargren indicated the potential of discon-
tinuing the search, starting over again, but using a
different method -- a headhunter, a special committee,
or a Chancellor to do the initial searches, then bring
a finalist list to the Board. That has been done in
other states; however, General Counsel Klasic stated
he would have to do further research because the suc-
cess of that procedure might actually depend upon the
specific language of the Open Record Law in question.
Dr. Hammargren expanded on his suggestion, asking what
would happen if the search was terminated, asking for an
Attorney General's opinion on using a "headhunter" approach
so that there would be a totally independent agency screen-
ing applicants and protecting their confidentiality, and
allow a month or so for the opinion. Mrs. Berkley stated
that the problem is that one of the applicants is the
Attorney General, and her opinion could not be altered at
this time without the appearance of impropriety. Dr.
Hammargren stated that if there was a conflict that an
independent legal analysis could be done in a short period
of time.
Mrs. Gallagher stated that some of Dr. Hammargren's sug-
gestions could be used in changing the process, and felt
the Board should have a chance to define its process.
Mrs. Price asked whether the Board has a legal responsi-
bility to the applicants having put them through the process
to this point? General Counsel stated he did not think so,
that the only responsibility at this point is to those who
have withdrawn their applications and those should be hon-
ored to keep their applications private.
Dr. Derby stated she felt 73% was impressive because she
expected 1/2 to 2/3 of the candidates would withdraw.
She stated she was concerned with the discussion of ways
of circumventing the Open Records Law. She added that
with some of the suggestions the Regents would lose their
opportunity to be very involved in the search, and wonder-
ed whether the Board was willing to trade off that involve-
ment with the 27%. She suggested that another search, open
at the beginning, would still draw plenty of good appli-
cants. She explained that she had been involved in one
other search and a lot goes on in the stage when looking
at the larger pool of candidates, a narrowing process is
done which has a great deal of involvement. She felt that
a Regents' committee is the appropriate place for this
process to be done, even though the Board may set param-
eters and guidelines for someone else to follow. She
urged careful thought on this matter.
Chairman Eardley stated that a search can be terminated at
any time, and a number have been terminated just before a
finalist is named, and candidates will withdraw at any time
during a search for any number of reasons. She stated he
felt the process has been compromised for this search.
Mrs. Price stated that in Presidential search discussions
at Community College meetings she has attended where the
reputation of a school is hampered when there is an "inside"
candidate, yet the search process is carried through to the
end and good applicants have their names in the hopper.
She stated that the Board should have known all the prob-
lems they are now facing, they are the Board's problem and
not the applicants' problem, and she feels the Board has
an obligation to go through the process at this point,
based on the law and because there is still an applicant
pool and some of these people may not apply in another
year or so.
Mrs. Sparks asked for clarification of options 1 and 2, with
General Counsel Klasic stating they are essentially the
same, with the difference being of who would institute the
law suit, either the Board waits to be sued or institutes
the suit itself.
Chairman Eardley asked for public comment. There was none.
Mr. Graves stated that he wanted it known that he certainly
has every intention of always complying with the law; how-
ever, he had a motion for the Board.
Mr. Graves moved to discontinue the search, to direct Legal
Counsel to research and explore the legalities of conduct-
ing executive searches through head hunters or Chancellor's
staff to narrow the field to 5-7 finalists for presentation
to the Committee or the Board, and that the Board ask the
Legislature for an exemption from the law in making only
the finalists names open. Dr. Hammargren seconded.
Dr. Hammargren commented that he felt the law contains a
faulty process. Mrs. Sparks stated that by this motion the
Board is assuming there is a faulty process in that it has
not had an opportunity to yet work, and cautioned that the
vote will be taken based on assumptions with no facts on
which to base a "faulty process" assumption.
Upon roll call vote, the motion carried.
Aye: Regents Berkley, Gallagher, Graves, Hammargren,
Whitley, Eardley
No : Regents Derby, Foley, Klaich, Price, Sparks
The meeting adjourned at 5:40 P.M.
Mary Lou Moser
Secretary of the Board
01-21-1994