01/21/1994

UCCSN Board of Regents' Meeting Minutes
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