07/20/1994

UCCSN Board of Regents' Meeting Minutes
July 20-21, 1994








7-20-1994

Pages 96-131



BOARD OF REGENTS

UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA

July 20, 1994



A special meeting of the Board of Regents was held via video

teleconference on July 20, 1994 at 11:00 A.M. The locations

were: Computing Center, University of Nevada, Reno Campus;

Computing Center, University of Nevada, Las Vegas Campus; Room

138, Western Nevada Community College; Room 128, Greenhaw

Technical Arts, Northern Nevada Community College; and Shadow

Lane office, Community College of Southern California.



Members present: Dr. James Eardley, Chairman Reno

Mrs. Shelley Berkley, Las Vegas

Dr. Jill Derby, Washington, D. C. (telephone)

Mr. Joseph M. Foley, Las Vegas

Mrs. Dorothy S. Gallagher, Las Vegas

Mr. Madison Graves, II, Reno

Dr. Lonnie Hammargren, Reno

Mr. Daniel J. Klaich, Reno

Mrs. Nancy Price, Reno

Mrs. Carolyn M. Sparks, Las Vegas

Mrs. June F. Whitley, Las Vegas (telephone)



Others present: Interim Chancellor John A. Richardson

President Anthony Calabro, WNCC

President Joseph Crowley, UNR

President Ron Remington, NNCC

Mr. Donald Klasic, General Counsel

Ms. Mary Lou Moser, Secretary



Chairman Eardley called the special meeting of the Board of

Regents to order at 11:10 A.M. on July 20, 1994 with all Regents

present except Regents Berkley, Foley and Sparks. Mrs. Berkley,

Mr. Foley and Mrs. Sparks entered the meeting during General

Counsel's remarks.



1. Discussion and Action Regarding Attorney General's Open

Meeting Law Memorandum



Chairman Eardley explained that on July 12, 1994, the At-

torney General released in internal memorandum opinion

stating that the Chancellor is a public officer for the

purposes of the Nevada Open Meeting Law. Chairman Eardley

asked General Counsel Klasic to report on this matter.



General Counsel Klasic stated that the Board should discuss

whether it would like to conduct open or closed meetings

for the purpose of holding interviews of candidates for the

position of Chancellor, and for the purpose of discussing

the candidate's qualification. Mr. Klasic stated that he

would be explaining the above issues in three parts: 1)

Counsel's opinion of whether the UCCSN Chancellor is a

public officer; 2) discussion of factors to take into con-

sideration on whether to conduct an open or closed meeting

on interviews or discussion of qualifications; and 3) dis-

cussion of the remedies or sanctions that are available

for violations of the Open Meeting Laws.



1) Opinion of whether the UCCSN Chancellor is a public

officer - Mr. Klasic stated that the Attorney General

has issued an internal memorandum taking the position

that the UCCSN Chancellor is in fact a public officer.

Therefore, under the Open Meeting Law, all discussions

relative to the appointment of a Chancellor must be

conducted in open session. Although there is an ex-

ception to the Open Meeting Law, which states that a

closed meeting can be conducted to discuss the compe-

tence, character, misconduct or mental or physical

health of a person, there is a limitation whereby a

closed meeting cannot be conducted for those purposes

to discuss the appointment of a person to a public

office.



Mr. Klasic stated that it was his opinion that the

Chancellor is not a public officer, and that the Board

of Regents would not be obligated to hold a closed

meeting to discuss interviews or qualifications of

candidates. The Attorney General indicated that there

is a definition of a public officer in the Nevada Re-

vised Statutes. The Nevada Supreme Court has held that

referenced statute, in fact, is consistent with its

prior holdings on what is a public officer. There are

two tests that have to be met in order for a person to

be considered a public officer:



1) A public officer is a person elected or appointed

to a position, which is established by the consti-

tution or a statute of this State or by a charter

or ordinance of a political subdivision of this

State, AND



2) Involves the continuous exercise as part of the

regular and permanent administration of the

government of the public power trust or duty.



The Attorney General took her position based on NRS

396.210, which proportedly creates the position of

Chancellor and said the first part of the test has been

met. The statute provides that "after consultation

with the faculty the Board of Regents shall appoint a

Chancellor of the System. The Chancellor shall have

a degree from a College or University recognized as

equal in rank to those having membership in the Associ-

ation of American Universities." Mr. Klasic stated

that his concern with the opinion is that the Attorney

General tended to treat the System as just another

State Agency. In point of fact, the University and

Community College System of Nevada and its Board of

Regents is a constitutionally organized and establish-

ed entity. As such, it has constitutional autonomy.

The case law indicates that a constitutionally auton-

omous State University is a part of the Executive

Branch of State government, but it is not like any

other State Agency. Within the internal affairs of

the UCCSN it is equal to the other branches of State

government. Mr. Klasic explained that insofar as the

Board of Regents has authority to run its own internal

affairs, the Legislature lacks the authority to tell

the Board of Regents what it may do.



Mr. Klasic explained that there was a case in 1981,

"Board of Regents v. Oakley", involving the University

of Nevada System, in which Nevada's Supreme Court in-

dicated that whenever the Legislature enacted a law of

general application, which applied to all State Agencies

and did not involve the internal affairs of the Univer-

sity, that law could be applied to the University. This

is why UCCSN is subject to the Open Meeting Law; it is

a law that is applied to all State Agencies and is a

matter of Statewide interest.



In considering NRS 396.210, which indicates that the

Board of Regents shall appoint a Chancellor, Mr. Klasic

said it only applies to one agency, the University of

Nevada. It clearly applies to a matter of the internal

affairs of the University only. The Nevada Supreme

Court held in the case of "King v. Board of Regents" in

1948, that the Board of Regents have the exclusive, ex-

ecutive and administrative authority over the affairs

of the University. Mr. Klasic explained, therefore,

that the Board of Regents does not need NRS 396.210 to

create the position of Chancellor. If the Legislature

had never enacted NRS 396.210 the Board of Regents

would have had the authority to create the Chancellor.

If the Legislature were to repeal NRS 396.210, the

Board of Regents could still keep the position of Chan-

cellor. The Board of Regents has the authority to

change that office by abolishing or creating another

position, etc. The statute did not create the office

of Chancellor; the Board of Regents created this posi-

tion. The Legislature simply recognized the authority

which the Board of Regents already had in its posses-

sion.



Mr. Klasic stated his research showed that the Board of

Regents established the Chancellors Office by Board of

Regents' action on February 10, 1968. On April 24, 1968

the Board of Regents appointed Neil Humphrey as the 1st

Chancellor of the System. The statute on which Senior

Deputy General Robert Auer of the Attorney General's

office relies to say that the Legislature created the

Chancellor's Office was not enacted and approved by

the Legislature and the Governor until April 29, 1969,

and it become effective July 1, 1969. So for a period

of one year and a half, prior to the statute even com-

ing into effect, the Board of Regents had already

created a Chancellor's Office and had already appoint-

ed a Chancellor. Mr. Klasic said this should be proof

positive that it is unnecessary to have the statute to

create the position of Chancellor.



In addition, Mr. Klasic explained, NRS 396.210 proports

to direct the Board of Regents to appoint a Chancellor,

to tell the Board of Regents the means by which a Chan-

cellor shall be appointed, and to set the qualifica-

tions of a Chancellor. Mr. Klasic stated that this is

an impermissible legislative interference in an essen-

tial function of the UCCSN. Under "King v. Board of

Regents", and "Board of Regents v. Oakley", that statute

is void, unconstitutional, and has no effect whatsoever.



Mr. Klasic explained that the first portion of the test

has not been met. The position of Chancellor is not a

position that has been created by a statute of the

State; it was created exclusively by the Board of Re-

gents.



With regard to the second part of the test of the term

"public officer", which requires a person to be in-

volved in the "... continuous exercise as part of the

regular and permanent administration of the government

of the public power trust or duty", Mr. Klasic stated

that there is a very important case that the Nevada

Supreme Court relies on in determining this particular

issue. In "Mathews v. Murray", the Nevada Supreme

Court quoted from another case that to constitute a

public office it is essential that certain independent

public duties as part of the sovereignty of the State

should be appointed to it by law, to be exercised by

the incumbent by virtue of his election or appointment

to the office thus created and defined, and not as a

mere employee subject to the direction and control of

someone else. The fact that public employment is held

at the will or pleasure of another or holds the posi-

tion at the will of his principal is held to distinguish

a mere employment from a public office. Mr. Klasic

stated that the Attorney General did not give much

discussion to this particular issue. First, Mr. Klasic

said the Chancellor is a person who holds his or her

office at the pleasure of the Board of Regents; second-

ly, the Chancellor does not have independent authority

from the Board of Regents. Only the Board of Regents

establishes the duties of the Chancellor, and the

Legislature recognizes this, stating that the Board

shall provide the duties of the Chancellor.



Mr. Klasic noted that the Regents' Handbook, Title 4,

Chapter 1, Section 4, states "It shall be the function

of the Board of Regents to approve or reject policies

proposed by the Administration. Only in the most un-

usual circumstances should the Board of Regents concern

itself with the details of administration. Upon the

basis of recommendations and data presented by the

Administration, the Board of Regents shall determine

the general method in which various problems and ad-

ministrative duties are to be solved or handled and

shall permit the Administration to apply the policies

decided upon to single individual jobs or problems.

Whenever a situation arises where no policy has been

established in the past, the Chancellor shall analyze

the situation and determine the issue upon which the

Board needs to act. Thereupon the Board shall settle

policy in reference to the particular case. After the

Board has acted, the Chancellor shall apply the new

policy to the particular cases. Where appropriate,

the Council of Presidents shall be involved."



Mr. Klasic summarized that the Chancellor does not have

independent policy setting authority; the Board of Re-

gents performs this function. The Chancellor indenti-

fies issues and brings them to the Board for action,

and then carries out the new policy.



Mr. Klasic explained that Mr. Auer has indicated that

there are a number of statutes on the books, which in

his view, indicated that the Chancellor has duties

established by the Legislature, independent of the

Board of Regents. Mr. Klasic disagreed and explained

that the Board has constitutional autonomy, whereas the

Legislature does not have the authority to set the dut-

ies of the Chancellor. Mr. Klasic reviewed the statutes

from which Mr. Auer formulates his opinion.



1) In NRS 396.620 the Legislature has set forth that

the Chancellor shall cause to be analyzed by an

appropriate employee of the System any ores, min-

erals, soil or water taken within Nevada and sent

to the Bureau of Mines and Geology. Until 1993,

that statute used to provide that the President of

UNR was to perform that duty. The Chancellor has

never performed that function and probably would

not perform it in the future. Mr. Klasic stated

that he was unsure of why that statute was passed,

but felt that it might have something to do with

the name change of the System.



2) In NRS 396.853 the Chancellor signs and counter-

signs bonds and securities issued under the Univer-

sity Securities Act. Mr. Klasic stated that this

is only a ministerial duty, whereby the actual

signing is by the Chairman of the Board, and the

countersigning by the Chancellor is nothing more

than attesting the signature. More importantly,

the Legislature has gone out of its way to provide

that the University Securities Act will not con-

stitute a liability of the State of Nevada. Mr.

Klasic found it difficult to see how the Chancellor

is performing a function of the sovereignty of the

State of Nevada with respect to the University

Securities Act, whereby the Legislature indicates

that the University Securities Act is not a part of

the State's liability.



3) In NRS 396.323 the Chancellor has the authority to

issue subpoenas in order to enforce disciplinary

matters with the University System. Mr. Klasic

stated that once again there is the question of

whether the Legislature can enact that statute,

given the fact that this involves purely an in-

ternal matter, namely disciplinary matters. More

importantly, the Chancellor has no authority to

enforce that subpoena power. In order to enforce

the subpoena power, he/she would have to go to

court. In Mr. Klasic's opinion this shows that

this is not a part of the sovereign function of

government.



Mr. Klasic stated that Mr. Auer has indicated that the

Attorney General's office has previously litigated and

the First Judicial District Court held that a super-

intendent of a local school district is a public offi-

cer. The implication is that if a superintendent of

a local school district is a public officer, how can

it be said that the person who heads up the University

System, a $400 million operation, is not a public of-

ficer? Mr. Klasic noted that the case of "Menglekamp v.

List" decides this particular issue by noting that when

the Legislature draws a line, there is frequently little

demonstrable difference between cases on opposite sides

of the line and closest to it. Still, if it is demon-

strated that there is clearly a rational or legitimate

reason for the distinction drawn, the law must be up-

held. Mr. Klasic explained that the Legislature has

drawn the line in terms of defining what is a public

officer. That definition includes the superintendent

of the school districts. A local school district is not

a constitutionally autonomous body; it cannot exist but

for the Legislature; its employees cannot exist but for

the Legislature; its employees cannot carry out the

school district's functions, except for the Legislature.

Therefore, the line has been drawn and the superintend-

ent of public schools is on one side of the line while

the Chancellor is on the other side of the line because

the Chancellor's position has not been created by stat-

ute, and he does not carry out the functions of the

sovereign.



Mr. Klasic reiterated that the Chancellor is not a

public officer and consequently there is no obligation

under the Nevada Open Meeting Law for this Board or its

committees to conduct an interview or discussions of

the qualifications of candidates in closed session.



2) Discussion of the factors to take into consideration

whether to conduct an open or closed meeting on inter-

views or discussion of qualifications of candidates -

Mr. Klasic stated that the Board of Regents is not

obligated to conduct closed meetings; the Board can

hold open meetings if it so desires. The Board must

make the determination as to what will best serve the

interests of this System and the people of the State

of Nevada, in either open or closed meetings to dis-

cuss these particular issues.



Mr. Klasic noted that there is an opinion that meetings

should be conducted in the open because that is in the

spirit of open government and will help prevent the

possibility of nepotism or political decisions being

made in secrecy. Mr. Klasic said that the 5 candidates

that the Board was presented with are most likely not

related to anybody in the System, and they are all far

enough away from Nevada that politics would not enter

into this process.



However, on the issue whether the Open Meeting Law

fosters open government or not, Mr. Klasic stated that

he is not taking a position one way or another. He

did want the Regents to know that a book has recently

been published by Riesman and Mc Laughlin, and he

referred to an excerpt from the book which was dis-

tributed by Dr. Ira Krinsky during the meeting in which

professional search firms were interviewed by the ad

hoc Chancellor's Search Committee. He noted that the

State of Florida provides for open searches and it has

been said that this process works. However, Reisman

and Mc Laughlin have conducted further research on this

and they indicate as follows, "In the public arena there

is virtually no discourse about which professional ex-

periences and personal attributes were deemed essential

for a new President. There is also no serious evalua-

tion of the perceived strengths and weaknesses of the

candidates of themselves." They also reported that

"In the presence of the Press and the public, the

Search Committee and the Regents did not debate the

hard choices facing them. Indeed they did not debate

much of anything at all." In addition, they said,

"The same reluctance to speak candidly at open meet-

ings was present in the 1988 University of Minnesota

search. On November 30, 1988, when the Minnesota Re-

gents met in public session to choose the new Presi-

dent of the University from among 3 finalists there

was a minimum of discussion. This was not because

there was a mininum of disagreement, for the final

verdict was far from unanimous. One of the Regents

explained afterwards, 'The problem is that anyone with

serious reservations about a candidate, something detri-

mental, isn't going to air them in public. In the pub-

lic you are concerned about demeaning someone's charac-

ter, concerned about libel.'" Riesman and Mc Laughlin

concluded, "Sunshine laws are often defended as a

means of educating and informing the public. However,

a sunshine search process can hardly be considered

educational when important issues related to the search

are not discussed frankly or perhaps not discussed at

all. The presence of the media benefits the simpli-

fiers and puts at a disadvantage those whose judgments

are propagated and take longer to state and to compre-

hend. Ironically, the more open a search is in terms of

public disclosure, the less openness in terms of candor

and argument is practiced by all parties. Despite their

promise of openness, sunshine searches reduce open ac-

cess to talent and impede open deliberations about can-

didates. Unfortunately, then, the effect of the sun-

shine laws have been the promotion of the value of ac-

cess to information, to the neglect of the allowed

purposes for which these laws were enacted -- good

government and good decisions."



Mr. Klasic said the Board of Regents will have to

determine whether an open or closed meeting would

foster the hiring of a Chancellor for the System.



3) Discussion of the remedies or sanctions that are

available for violations of the Open Meeting Laws -

Mr. Klasic stated that there are two ways in which

litigation against the Board of Regents can proceed:



a. civil enforcement, or

b. criminal enforcement.



Mr. Klasic explained that "civil enforcement" entails

the possibility of getting an injunction. It is pos-

sible that if the Board prepares a notice of a meeting

and indicates the possibility of a closed meeting in

the notice, that the Attorney General may go into court

and seek a temporary restraining order to prevent that

from happening.



Mr. Klasic stated that he has discussed this with of-

ficials in the Attorney General's office and they have

informed him that this is not likely to happen, be-

cause it is always up to the Board to change its mind

at the last minute, and the Attorney General's office

is uncomfortable about going into court on a specula-

tive matter. They would rather have the violation

occur and then seek an injunction.



In addition, any action which the Board takes could be

voided. Mr. Klasic stated that he, as General Counsel,

does not permit the Board of Regents to take action in

closed meetings, and the Board has been very good about

this in the past. So there is no action to void, and

it would be stretching it if the Attorney General's of-

fice would void a Chancellor's selection if a discussion

was held in closed meeting. The remedy to be taken if

that occurs is to simply hold another meeting in the

open and take action again to select a Chancellor.



Mr. Klasic explained "criminal enforcement" by stating

that the Nevada Open Meeting Law provides "Every member

of a public body who attends a meeting of that public

body where action is taken in violation of any provision

of this chapter with knowledge of the fact that the

meeting is in violation thereof, is guilty of misdeanor.

The Attorney General shall investigate and prosecute

any violation of this chapter." Mr. Klasic stated that

the key language is: "the knowledge of the fact that

the meeting is in violation thereof." The Attorney

General states there would be a violation of the law

with knowledge of that fact since Mr. Auer's memorandum

states, "Whether or not a Chancellor should be consider-

ed as a public officer for open meeting purposes is an

issue that has not been directly addressed in Nevada's

case law." So this is an open issue, Mr. Klasic said,

and there is one attorney whose opinion is not binding

saying that it is a violation of the Open Meeting Law

to do this, and there is yet another attorney whose

opinion is not binding who says it is not a violation

of the Open Meeting Law.



If the Board should choose to follow the advice of its

own Counsel, and hold a closed meeting, the Board may

be faced with the claim that the meeting was in viola-

tion of the law. Mr. Klasic noted that each Regent

should have received a letter from the attorney repre-

senting the Nevada State Press Association on this

claim and Mr. Klasic's response to that letter. Mr.

Klasic felt it was an improper act for the Press Associ-

ation's attorney to directly send to each of the Board

members a letter without the permission of the Board's

attorney or copying the Board's attorney.



Mr. Klasic noted that Mr. Evan Wallach, attorney for

the Nevada State Press Association, cited in his letter

to the Board of Regents dated July 14, 1994, the case

of "State ex rel Murray v. Palmgren" in which the Kansas

Supreme Court held that a public body violated the

State's Open Meeting Law. However, Mr. Klasic noted

that Nevada's Open Meeting Law is somewhat different

from the Kansas Open Meeting Law, in that Kansas pro-

vides that anyone who knowingly violates the Open

Meeting Law is guilty of misdemeanor, but Nevada's

law states that anyone who attends a meeting where

action is taken in violation with knowledge of the fact

that the meeting is in violation is guilty of a mis-

demeanor.



There is a very important difference between these two

laws, and Mr. Klasic explained that the Kansas Supreme

Court indicated that proof of criminal intent does not

require proof of knowledge of the scope or meaning of

the terms used in the statute. All that is required is

proof that the person acted intentionally in the sense

that he/she was aware of what he/she was doing. In the

Kansas case, the question that is asked is, "Are you

aware of doing an act?" It makes no difference whether

you know or don't know that the act is a violation of

the law or not. If the act is performed and the act

is illegal, the law has been violated. On the other

hand, Nevada asks a more specific question, "Are you

aware of the legality of the act? Do you know the act

that you are about to do is illegal?"



Another case cited by Mr. Wallach, "Powers v. Goodwin",

did not involve the Open Meeting Law. However, Mr.

Klasic said it did involve a situation where a group of

county commissioners paid some money to a person il-

legally. The question was whether the commissioners

would be liable for the money to the taxpayers. The

commissioners stated that they relied on their attor-

ney's advice in voting the way that they did. This

case is also distinguishable from Nevada law as stated

in the case "Cannon v. Taylor", in which the Nevada

Supreme Court held that the Clark County Commissioners

were not liable for illegally paying money when they

acted on the advice of the Attorney General. However,

the Power case still recognizes a defense when a client

acts in good faith upon his/her attorney's advice. The

following four tests must be met in order for the cli-

ent not to be held liable:



1) the client must make a complete disclosure

of the facts to the attorney;



2) the client must request the attorney's advice

as to the legality of the action;



3) the client should have received advice that it

was legal; and



4) the client should have relied upon the advice

in good faith.



Mr. Klasic said that Mr. Wallach also cited "Bear Creek

Valley Sanitary Authority v. Hopkins", which is a very

similar case concerning the illegal payment of money.

The Oregon Appeals Court cited the "Cannon v. Taylor"

case with approval, although it was not the Attorney

General who gave the advice, but a private attorney.

The Oregon Court of Appeals stated that the policy ex-

pressed therein militates in favor of allowing a de-

fense of good faith reliance on the advice of counsel

to public officers. "We do not believe that local

officials should be required to make complex decisions

regarding expenditures of public funds without the

advice of counsel and at their own risk. Such a re-

quirement would discourage competent individuals from

seeking or accepting such positions and would be a

detriment to local government. We hold that the de-

fense is available to these defendants, even in the

case of private counsel."



Finally, Mr. Klasic said, Mr. Wallach cites "City

Council of Reno v. Reno Newspapers" to the effect that

a "criminal contempt violation of the Nevada Open Meet-

ing Law may require conscious awareness of a wrongful

act." Mr. Klasic stated that Mr. Wallach has taken

that citation quite drastically out of context. This

was a case where the City Council had entered into a

voluntary injunction with Reno Newspapers where Council

agreed it would not violate the Open Meeting Law. The

Nevada Supreme Court stated, "The evidence in this case

does not support a finding of criminal contempt of

court. The injunction was somewhat ambiguous as to

what conduct was prescribed and whether the injunction

was effected indefinitely. The Council members con-

sidered two apparently conflicting sections of the

Nevada Open Meeting Law and asked their City Attorney

for his opinion. The City Attorney had indicated that

the Council could meet in closed session to discuss the

applications for the position of City Clerk based upon

his reading of Nevada law and the then recently issued

"Mc Kay" decision. Acting on his advice the Council

voted to meet in closed session and then conducted the

meeting. This conduct does not show any conscious

awareness of a wrongful act for the existence of a

guilty mind. It is therefore concluded that there was

no willful violation of the District Attorney's prelim-

inary injunction.



Chairman Eardley requested each Regent, if he/she so de-

sires, to make a statement pertaining to this discussion.



Mrs. Whitley stated that she has served on a number of

search committees and is aware of the issues that are dis-

cussed during the interview process with the candidates.

In her opinion, Mrs. Whitley stated that it would be both

detrimental not only to the candidates, but also to the

Board's ability to select the best qualified individual

for the position. Therefore, she stated that she was in

agreement with General Counsel Klasic's advice.



Mrs. Sparks stated that she did not think the Attorney

General's office has provided the Board of Regents with

legally sound advice as to why the Board should not con-

tinue to conduct its search as it has been performed in

the past. General Counsel Klasic has certainly demonstrated

a much stronger argument. The Board's discussions that

would be held with the candidates should be in a closed

session. However, once the Board conducts its interview

with the candidates, the public will then have an oppor-

tunity to meet and interview the candidates and have an

opportunity to provide input to the Committee. The informa-

tion from the Attorney General's office is similar to that

cited in the letter from the Nevada State Press Associa-

tion's attorney, Evan Wallach, which was not impressive.

Mrs. Sparks stated that she could not see the Board con-

ducting a wrongful act and she would not have a guilty mind

in attending a closed session. She stated that General

Counsel Klasic has provided the Board with solid advice

and has provided the Board with a defense to respond to

the Attorney General's office. Mrs. Sparks agreed with

the advice and will take the advice in good faith.



Mrs. Price indicated that when she became a member of the

Board of Regents, she had discussions with General Counsel

Klasic regarding what a public officer was, what a political

subdivision was, and the constitutional role of the Board of

Regents. She stated that she has the utmost confidence in

the Board's Counsel and his ability. However, she stated

that she did have a different conclusion in this very

important situation for the entire System.



Mrs. Price stated that the problems of the Board has in un-

derstanding its role, the Chancellor's role, and the Pres-

ident's role is tied in this whole area of definition. Re-

garding the political subdivision issue, it has been stated

that the Board of Regents belongs to the Executive Branch.

Mrs. Price stated that she has accepted the arguments with

regard to the autonomy under the constitution, autonomy

from the Legislature, and the fact that the Legislature

passes unconstitutional laws with regard to the University

System. She stated that these laws are unchallenged by

the Board, and now the Board is faced with this outcome of

that history. With regard to the Chancellor and the Pres-

idents, they are referred to as "public officers" in the

Association of Governing Board's handbook materials, and

the Board requests these persons to act as public officers

when the Board insists that they manage the System and the

Board of Regents does not micro-manage. There are organ-

izational charts and the UCCSN Code that clearly place these

persons in control. The difference between Mr. Klasic's

remarks and Mrs. Price's view of the System, is that the

Board of Regents has an enormous authority because the

Legislature is not involved in the University System and

the System is not an agency of the Administration. The

Board of Regents has a higher authority over the System

that equates to a legislative type of authority. The people

that are appointed to the Chancellor and Presidents' posi-

tions by the Board are appointed in the manner as in a

political subdivision and the Board wants its employees to

take the responsibility of authority.



With regard to the Open Meeting Law, Mrs. Price stated that

no matter what the decision, it is clear to her that the

direction of government is toward more open meetings and

more participation. The fact that a person may be inhibited

from applying for a position that has much authority and

ability to make changes as a public and political adminis-

trator means to her that these persons are not appropriate

to hold these positions.



Mrs. Price reminded the Board that it has conducted several

public meetings with students, faculty, and general public

whereas it has been stated that the Board of Regents is not

going to abide by the law, because the end justifies the

means. If this is the case where the Board of Regents is

going to defy the law, which has been perceived by Mrs.

Price, then the Board needs to go to court and get a de-

cision and then continue with its business. For the Board

of Regents to say that it does not agree with the Attorney

General's opinion and then proceed with its business, Mrs.

Price stated that she felt the Board was blatantly defying

the law.



Mrs. Price indicated that she has a personal problem with

the part of knowingly violating the law. The intent con-

nects with the legality of the situation, in that in many

cases it is an individual's intent that determines whether

he/she violated the law or not. Now if there are two dif-

ferent opinions and Mrs. Price stated that if she should

believe that it is wrong to hold closed meetings, then she

would knowingly be in violation of the law if she were to

attend the meeting. On the other hand, Mrs. Price stated

that she is an elected representative. If she does not

attend the meeting, then she felt that she was not perform-

ing her job as a Regent. Furthermore, Mrs. Price indicated

that she would be placed in the position of not being able

to represent her constituents because she could not attend

meetings that she considers in violation of the law.



Mrs. Price stated that she was hopeful that attitudes would

change between now and the next legislative session and that

the Board would follow the Attorney General's opinion and

appear as good citizens. Then, during the legislative ses-

sion, the Board can seek clarification of the Open Meeting

Law based on the legislative process and the process of

government. There needs to be a clarification on the fact

that the Legislature does not have a part in the Univer-

sity's organization and that the Board recognizes that this

would give greater authority to the Board and the Board

should act on this authority. The Board of Regents is a

body which makes policy and the persons that implement the

policy are public officers and subject to the laws of public

officers.



Mr. Klaich stated that he appreciated General Counsel

Klasic's analysis. It was very thorough, and as an elected

Regent, Mr. Klaich will take General Counsel's advice into

account when making a decision. Mr. Klaich stated that he

has taken a broader view of the question and that is the

issue of how the Board of Regents tends to conduct its bus-

iness while being perceived by the public and the resulting

health of the System as viewed in that context. This ques-

tion has been before this Board for over a year and it has

to do with how the Board conducts its executive searches.

At this time, the Board has a narrow focus on this issue.



Mr. Klaich continued that through the good fortune of stable

leadership over the last decade, the Board has not conducted

many executive searches. In that time, attitudes have

changed and directions of government have changed, but the

Board of Regents has not changed. The Board wishes to

conduct business in the same way it did 10 years ago. There

are some members on this Board who feel that if they are not

allowed to guard the applicant's privacy throughout the

search process, then somehow the search committee will lose

some very highly qualified applicants. If this is true,

it is a price worth paying. There is no question that the

trend in government is for more openness at all levels, in-

cluding executive searches.



Mr. Klaich stated that if at the beginning of an executive

search, the candidates are notified of the Board's attitude

toward public government and the execution of public trust,

then, it is his opinion that it would be more likely that

the search would attract candidates that would bring the

same commitment to open government to the position and in

the long run will better serve the Board. To the contrary,

Mr. Klaich stated that closed searches cater to clannish-

ness and the entrenched bureaucracy in higher education

which is largely white and male. If the Board of Regents

is to appeal to a class of candidates by choosing a search

process, Mr. Klaich stated that he would favor an open

search process which would appeal to a new and more diverse

generation of leaders in higher education committed to pub-

lic trust and the public's right-to-know in the exercise

of their office.



Regarding another point, Mr. Klaich stated that the Board

has suffered greatly in the past two years for those

activities not undertaken in public. While not directly

related to the issue being discussed, Mr. Klaich stated

that it is related in the sense that the credibility of

this Board is not at its highest level. He stated that

he was not criticizing anyone in making these comments but

himself, because he has participated in all of the actions.

He stated that if he has been in error, so be it, but it

is time to put the issue of open/close behind, to stop

talking about lawsuits, closed meetings and admendments to

the Open Meeting Law, which will never occur. The Board

should start talking about the important things in higher

education, such as student/faculty ratios, long deferred

pay raises, old decaying buildings that need renovations,

capital projects that need to be started, and equipment that

has not been appropriated by the Legislature. He questioned

whether the Board wants to spend time in the next legisla-

tive session discussing the Open Meeting Law, or should the

Board spend time talking about the woeful underfunding of

the System that will affect students into the next millen-

nium.



Mr. Klaich stated that he did not care about the last two

opinions given by the Attorney General, or whether they are

right or wrong. This Board needs to take a position at this

time in favor of the clear trend in public government --

conduct the searches openly and go forward. Mr. Klaich

stated that whether this is pursuant to the Open Meeting

Law or policies that this Board adopts that are consistant

with the Open Meeting Law is irrelevant. In the long term,

the Board of Regents will be a more respected, healthier,

and more diverse System.



Dr. Hammargren stated that he was in favor of an open search

for the next Chancellor. The "health" of the System should

be the Board's priority, in what the Board must look for in

the next Chancellor. The Board has been too litigious, too

quick to sue, to battle in court. The Board has been far

more concerned with lawsuits than with education. The em-

phasis has been on procedure, rather than educational re-

sults. The Attorney General's office interpreted the legis-

lative laws as unequivocable and that the Board should

choose a new Chancellor in public. If in the future there

are unconstitutional laws, then it is imperative for the

Board to keep track, and go back to the Legislature. If

there should be a "turf" contest between the Legislature,

Attorney General, or court system then Dr. Hammargren said

that's fine, but he did not want the future of higher

education dependent on the "turf contest". Instead, the

Board should look to itself for the future of higher edu-

cation. Dr. Hammargren mentioned that the library dis-

trict in Las Vegas conducted open meetings to choose its

leader and it has worked. He suggested that the Board of

Regents try the trend for open meetings. In the process

of choosing a Chancellor, Dr. Hammargren agreed with Mr.

Klaich in that the Board should select a person who is

willing to go through this process and that should be the

kind of person UCCSN should want to lead its System.



Mrs. Gallagher stated that the issue before the Board is

the law. There is a problem with the fact that the Board

has been told that the Chancellor is a public officer. She

questioned that if the Chancellor is a public officer, then

why aren't the Presidents considered public officers also?

Mrs. Gallagher did not feel that the Chancellor nor the

Presidents are public officers, but that the members of

the Board of Regents are public officers.



On the advice of the Board's General Counsel, Mrs. Gallagher

stated that she did not have a problem with attending a

closed session to discuss the characters, etc., of an in-

dividual, but if in that process the Board made a decision

on whom they were going to appoint, then there is a problem.

However, when the Board can go into a closed session to

discuss the character traits, why should these candidates

be exposed to the public with that type of discussion?

Although Dr. Hammargren reported that the Las Vegas library

district's search went well, Mrs. Gallagher has heard that

it was a disaster. Mrs. Gallagher stated that the Board

should allow the candidates some privacy in discussing

with the Board issues that probably should not be discussed

or answered in public. She added that she did not have a

problem with having candidates interviewed by the general

public or the media, in fact, it has already been estab-

lished that there will be an opportunity for this to occur.

To ask an individual to sit before the media and discuss

some of the character traits and questions that search com-

mittee members would want to ask in private, is not fair

to the candidate or the members of the committee.



Mrs. Gallagher stated that she would like the Board to

challenge the fact that the Chancellor is not a public of-

ficer. When this is taken up by the courts is not an issue,

but it should be addressed in the future. Then the Board

will have to develop a policy for future executive search-

es. There are other searches being conducted at this time

that have all different processes. She stated that the

Board should face up to this issue and make a decision on

how to proceed. The issue of the Chancellor serving as a

public officer must be defined, and if the court should rule

that the Chancellor is a public officer, then that is the

law and the Board should then abide by the law. Mrs.

Gallagher stated that in her opinion, the Attorney General's

opinion is not law. The determination will become the

foundation for the other future executive searches that

will come before the Board.



Mr. Foley stated that he was in agreement with Regents Price

and Klaich and was in opposition with Regent Gallagher on

this issue. Mr. Foley commended General Counsel Klasic for

the excellent study of this issue. However, he questioned

Mr. Klasic's advice to the Board, because now that the

Search Committee has released the names of the finalists,

there should not be a problem with confidentiality. How

can the Board interview the candidates in closed session?

Mr. Foley was under the impression that what Mr. Klasic

stated is that under the exception of the Open Meeting Law,

in which this Board practices consistently, any officer

that the Board appoints can be subjected to a closed ses-

sion to discuss their qualifications, etc. Mr. Foley

questioned whether the candidates who are non-employees

can be examined in closed session.



General Counsel Klasic responded that there has been

litigation over this same issue between the Nevada State

Press Association and the Board of Regents, in which the

Nevada State Press Association took the position that a

closed session can be conducted only when it involved

System employees. The position in which the Board of

Regents took, which was upheld by the District Court in

Clark County, is that the language of the statute actually

applies to any person, whether they are in the System or

not.



Mr. Foley continued and requested a change to his letter to

the Board of Regents and Donald Klasic, dated July 18, 1994

which is filed in the Regents' Office, in that "... partici-

pating in the selection of a Chancellor would be (unlawful)

DUMB in my opinion." He stated that he cannot agree 100%

with Regent Klaich, because of his own experience of serv-

ing on various search committees. He explained that the

Board probably should not expand its horizons of the search

process by conducting a full disclosure of the identity of

all the candidates who originally apply for the position.

As it has been witnessed with the previous Chancellor's

search earlier this year, the Committee arrived at the point

where it became fearful of having to disclose the appli-

cants' names. Chairman of the Search Committee, Mr. Graves,

notified the candidates of the possibility that their names

would be disclosed and a substantial number of excellent

candidates withdrew from the search. This indicates addi-

tional evidence, at this point in time, that the revealing

of the confidence that was assured these applicants would

be held in confidence by starting off with not affording

these applicants that confidence will definitely limit the

Committee's ability to select a qualified person for this

position. It is hopeful that those who apply are already

employed at an education system.



At this point, the ad hoc Chancellor's Search Committee

has named 5 semi-finalists and it seems that there is no

confidence left in this search process. Mr. Foley stated

that if there was any confidence left it has been violated

by the media when they published the names of the semi-

finalists. It could be possible that the Board was in

violation by releasing the names to the media. In any

event, Mr. Foley stated that Chairman Eardley has remarked

that to be a finalist provides a good advertisement for

that particular individual in his hometown.



Mr. Foley urged the Board of Regents to go public with the

interview process of the last 5 candidates for the Chancel-

lor position and then conduct a subsequent open meeting to

deliberate the most qualified and desirable finalist(s).



Dr. Derby stated that one must look at the broader issues

involved, as well as the present issue that the Board is

facing at this time. She stated that she had prepared a

statement, which is filed in the Regents' Office. As a

Chair of one of the 3 search committees that is underway

at this time, she stated that she was frustrated with the

uncertainty that surrounds the options of conducting a

Board search. She stated that she would welcome certainty

for certainty sake, whatever that certainty is. Dr. Derby

stated that her dilemma is that General Counsel Klasic

disputes the opinion of the Attorney General and it must

be decided who is right. She confessed that she does not

know who is right in this case. Intuitively, she stated

that the Attorney General's position that the head of public

higher education system made by statute is a public officer

makes sense; but General Counsel Klasic has made a very good

case to the contrary.



She continued that there are some broad issues that need to

be discussed. There are valid arguments for both sides of

this issue. However, the two values pitted against each

other in this discussion are, on one hand, the ability of

the Board to secure leadership, and the other hand, the

importance of operating openly and thereby complying with

the spirit and possibly the letter of the Open Meeting and

Open Record Laws, and thereby restoring public confidence

in the governance of public higher education.



Dr. Derby stated that one of the most important public

trusts is that of securing good leadership for the System.

She has been told by those with experience in higher edu-

cation that searches operating in the open diminishes the

opportunity to secure the best leadership from the widest

possible pool of candidates. Although the Board is dis-

cussing the confidentiality of the interview process, the

broader issues of conducting searches is also being dis-

cussed. There is validity and merit to the argument. She

stated that this argument has been made, and that there are

many potential candidates who would not take the kind of

risks by participating as candidates in an open search

process. Dr. Derby stated that by taking this argument

one step further, she stated that in a thoroughly open

search process it has been said that the Board would be

unable to secure good leadership because there really is

no factual ground for making such an extreme claim. Dr.

Derby stated that there is evidence on both sides of that

question, such as in the previous search process the Com-

mittee did lose many good candidates, at least on paper,

under the condition of anticipated openness, but there were

good candidates that remained. It is important to point

out that it is really unknown until the candidate proceeds

to the interview process whether there are good candidates

or not.



Dr. Derby stated that there are more questions that the

Board could expect on the requirement of openness in

searches to change the function of the pool of candidates

from one with less sitting CEOs to the more "up-and-coming"

candidates. She questioned whether that would mean that

there is a less qualified pool of candidates -- possibly it

might -- and is it a pool containing no good candiates --

no one could rightfully agree with that. After all, every

top executive in higher education was at some time or an-

other an "up-and-comer". This is an important considera-

tion in this larger issue of how this Board conducts its

searches. In a more specific case of open interviews, Dr.

Derby stated that she suspected that there would be a loss

of candor. For those who argue that that would be the case,

they are correct and there is merit to the argument. How-

ever, there is also something to be gained in an open proc-

ess, because in agreeing with Mr. Klaich, it is more likely

to select an individual who is comfortable with doing busi-

ness in the open. Dr. Derby considered this a plus to this

argument.



She stated that Nevada has strong Open Meeting and Open

Records Laws that are a fact of life in this State. If

the Board wishes to do it differently, it could lobby the

Legislature to change the law in the direction of less

openness, but it is known how unlikely that would happen.

She suggested that if a member does not like the law, he/

she could move to another State and run for its Board of

Regents where there are less stringent sunshine laws.

Sooner or later the Board must come to terms with that.

The Board's public image has suffered because it has not

come to terms with that issue. Dr. Derby stated that

changing the law is unlikely and she did not think it was

desirable. What the System needs is funding, not fighting,

when it comes to the Board's relationship with the Legis-

lature.



Another side of this issue is that the Board loses more

than it gains by refusing to comply with the Attorney

General's opinion. The argument that has been made by

those close to the public polls which have indicated that

our System has a serious credibility problem with the

people in Nevada and a reputation for preferring a closed

process than an open process. Dr. Derby suggested that

the first order of business is for the Board to rebuild

public confidence and the way it performs its business.

Dr. Derby stated that her dilemma is with merit given to

both sides of this argument, and the question before the

Board is whether it should prioritize confidentiality in

the search process at the risk of further eroding the

public's confidence, or does the Board prioritize the

restoration of public confidence by the Board's willing-

ness to operate in an open process, while risking the loss

of candor that an open interview is likely to produce, or

the broader case that has been suggested with regard to

the candidates' pool.



Dr. Derby stated that this issue is a hard one to face, be-

cause the Board will lose and gain something either way it

chooses. It is a matter of establishing priorities for the

Board. She stated that she is for the value of openness and

working to restore the public confidence. In the long run,

the Board will have paid a greater price by conducting

closed searches than if there is openness with a loss of

confidentiality within the search process. Dr. Derby sug-

gested that the Board comply with the Attorney General's

opinion and express its willingness to conduct this part

of the search in the open. Although Dr. Derby welcomes

the education that this matter has brought forth for seek-

ing a final and conclusive ruling, and to put away the

question and uncertainty that surround the searches, she

stated that she cannot choose to get there by choosing to

defy the law that has been interpreted by the Attorney

General. She is aware that the opinion of the Attorney

General is just an opinion, but it is not an opinion by

just any legal person, it is by the person that has been

elected by the people of Nevada to make such opinions.



If the Board can make a better case to the public and their

representatives in the Legislature that the Board needs to

have confidentiality to conduct the searches and then it is

therefore worth the sacrifice of openness, the opinions

might be more encouraging. However, the Board needs to re-

member that those in the media consider themselves as

guardians of openness in government. The case that could

be made to the public that the Board requires secrecy to

conduct its business will never be made to the public. Dr.

Derby stated that she agreed with those who say that the

clear trend across the country is towards openness and not

away from it. The Board needs to realize that they are

elected public officials in Nevada and realize that the

reality of having a system of elected Regents who have

sworn to uphold the laws of the State. This is the reality

and Dr. Derby stated that she was tired of fighting. By so

doing, the Board will be able to restore its confidence with

the public in the way the Board governs its Colleges and

Universities.



In closing, Dr. Derby stated that if the Board should choose

to challenge the interpretation of the law as rendered by

the Attorney General, she would welcome that clarification

and the adjudication in which it would bring to this Board.

She stated that she respects the views of others in this

discussion who believe that the greater good is done by

choosing confidentiality over openness and would disagree

with that opinion. She realizes that this Board does want

the best for UCCSN.



Mrs. Berkley stated that she was impressed with the dis-

cussion and that each point of view that has been expressed

has validity. She stated that she, too, was plagued with

what position to take on this very important matter. Mrs.

Berkley felt that there was no one in this State that

cherishes more and supports open government than herself.

Behind the Open Meeting Law is the larger idea that govern-

ment exists to serve the people. From this simple but

profound idea the democratic system has been derived. The

leaders are the public servants whose public duties must

be performed in the public interest. Public servants may

not withhold critical information from the public, open

government and government free of conflict of interests

are two sides of the same democratic coin. Mrs. Berkley

stated that she believes, and the record will show, that

she is a strong proponent of open government and the Open

Meeting Law ever since she began holding public office in

1983. She stated that she prides herself for being very

responsive to her constituents and the public need. She

supports candidates who agree in this philosophy.



Mrs. Berkley stated that there is nothing wrong with the

Open Meeting Law, however, she disagrees with the Attorney

General's interpretation of the Open Meeting Law in this

case. She did not believe that anybody would accuse her

of being an arrogant public official or believe that she

has an agenda of secrecy and closed government. She stated

that she has great concern that her remarks will be mis-

interpreted. Mrs. Berkley stated that she was hopeful that

the last 14 years of public service would hold her in good

stead while giving her opinion on this issue. Mrs. Berkley

reflected that she has been very critical of the actions of

this Board over the last few years and has not been con-

sidered one of the "good ol' boys" who have felt that the

issues should be discussed behind closed doors.



Mrs. Berkley stated that she has voted consistently in the

minority on this Board, and she does not accept responsi-

bility for the lack of credibility by the public of this

Board that is being experienced at this time. If the Board

is to restore public confidence, the Board needs to do its

job and do it well. The job before the Board at this time

is to find the best possible person to lead the UCCSN over

the next decade. It is the most significant and important

responsibility that a member of the Board has. Although

she was not a member of the Board 10 years ago, she cannot

believe that the reason why there hasn't been an executive

search for all those years is because there has been a

great deal of stability. In her opinion, Mrs. Berkley

stated that the Board has been gutless and the Board has

retained people in executive politions that should not have

been there.



Mrs. Berkley stated that she has thoroughly reviewed this

matter and commended General Counsel Klasic on an outstand-

ing job in presenting the issues before the Board in a legal

context. She believes that the Board of Regents are public

officials. The Attorney General's opinion has been very

detrimental to the Board by elevating one of its employees,

no matter how important that employee is to the System, to

a level of public official, which this employee should not

hold. This is a fundamental issue that needs to be resolv-

ed by the courts. The Board has been in a quagmire of in-

decision since last December when the Board received the

first Attorney General's opinion. It is absolutely essen-

tial that this Board take that opinion and the opinion of

the Board's General Counsel and get this matter litigated

and a decision made by a court of law. There is no shame

in asking for help. No matter how the Board votes on this

issue it will be a split vote and will continue to remain

split on a very fundamental issue. The courts are there

for this very reason, for this public body to avail itself

of the decision-making abilities of a court of law. The

Board should take advantage of this situation and take

this very right issue before a court of law to make a

definitive judgement.



Mrs. Berkley stated that in December she had requested the

Board to seek judicial guidance on this matter by way of a

declaratory judgement. She stated that her opinion has not

changed. By requesting a judgement it should not be con-

sidered an insult to the public, it is a service, and the

Board should seek this without controversy, without being

pitted to the "good guys" against the "bad guys". The

Board needs to get this matter resolved, because if not,

Mrs. Berkley assured the Board that this issue will con-

tinue to plague the Board of Regents. There are many

searches to be conducted in the future, and the Board needs

to have a decision on this matter.



Mrs. Berkley stated that she feels very uncomfortable when

she has heard that she has been sitting in public meetings

where Board members have suggested to others that the Board

is not going to follow the law and that the "ends justify

the means". Mrs. Berkley stated that she had never heard

this from a fellow Board member and she, herself, would

certainly not say anything to the contrary. Again, the

Board is in a quagmire of indecision and Mrs. Berkley stated

that she does not have a problem with the Open Meeting Law,

although she felt that this interpretation by the Attorney

General is incorrect.



Mrs. Berkley questioned General Counsel Klasic whether a

declaratory judgement is the action to be taken, and could

the Board receive a decision prior to August 12, 1994. She

does not want to go another day longer than necessary with-

out a permanent Chancellor in place.



General Counsel Klasic responded that the Board of Regents

are now in a situation that would lend itself to filing a

declaratory judgement action. There are potential adverse

parties involved: the Board of Regents which assumes to

proceed with the matter, and the Attorney General taking the

position that the Open Records Law requires open meetings

for interviews and discussion of candidates. In addition,

there is the very visible threat contained in Mr. Auer's

letter which indicates that if there is going to be a closed

meeting on this matter, then he would recommend the enforce-

ment of the Open Meeting Law.



With regard to receiving a decision by August 12, 1994, Mr.

Klasic responded that he has spoken with the Attorney Gen-

eral's office and they have indicated a willingness to

cooperate with the Board in putting together an expedited

briefing schedule to get this matter before a judge. There

are approximately 3 weeks to prepare the briefings. How-

ever, the issue lies with the court itself. Just because

the parties may agree to submit this matter before August

12, does not necessarily mean that the court is going to

reach a decision by August 12. Mr. Klasic stated that he

is hopeful that as part of the action, a meeting would be

held with the court to see if the court would be willing

to decide by that time.



In summary, Mr. Klasic stated that "yes" there is a basis

for a declaratory judgement action; "yes" the Attorney

General is willing to cooperate with the Board in putting

together an expedited briefing schedule; but he is un-

certain as to whether a court would be willing to give the

Board a decision by August 12.



Mrs. Graves stated that he agrees with all the statements

that have been made thus far by his fellow Regents. Un-

fortunately, Mr. Graves stated that perception is sometimes

reality. He informed the Board that he ran for the posi-

tion of Regent to perform the best job that he could to

make a difference in higher education. One of the most

important jobs that Regents have is to appoint the Chancel-

lor and the 7 Presidents. He believed that over the course

of his term as Regent that he would be replacing the Chan-

cellor and all 7 Presidents, who will lead the System into

the next century. He stated that if he is handicapped in

his ability to perform this task, he believed it would mean

filling these positions with lesser qualified candidates,

which will reflect lesser quality and poorer management

throughout the System. Members of this Board have spoken

with executive search firms and others across the country

in higher education on whether there would be a loss in the

best qualified candidates if an open search is to be con-

ducted, whereby all the names for all candidates are releas-

ed. The response is that the search process will not at-

tract the better qualified candidates. Yet, perception is

sometimes reality.



Mr. Graves stated that this Board has been beaten up and he

has personally been taken to task, particulary, because the

Chairman of the Board had appointed him as Chairman of the

ad hoc Chancellor Search Committee. Mr. Graves adamantly

stated that he wanted to get a Chancellor in place because

a permanent Chancellor will be the best thing that the Board

can do in order to get better government in UCCSN.



This search has been abandoned once. A meeting of the ad

hoc Chancellor Search Committee has been set for August 12,

1994. Mr. Graves informed the Board that there is one mem-

ber, out of 5 members, who is opposed to a closed session.

As Chairman, Mr. Graves stated that he would feel reluctant

to request this member to attend the meeting, if it should

be decided that the meeting will be in closed session. Mr.

Graves stated that conducting an open session goes against

what he believes, because in an open session the candor,

frankness and truthfulness will be lost and the Committee

will then open itself up to a libel lawsuit. Yet, under

the circumstances, there is no alternative but to conduct

an open session. Mr. Graves suggested that the Board re-

view this matter in two parts:



1) Hold the August 12 meeting in an open session to

select the best final candidates; and



2) Direct General Counsel Klasic to immediately

litigate this matter.



Mr. Graves stated that he agrees with General Counsel

Klasic that the Attorney General's opinion is poorly

written and it is only an opinion. In addition, the Nevada

State Press Association's attorney also did a poor job with

all the cases cited and does not hold up according to Gen-

eral Counsel Klasic. Although Mr. Graves agrees with Mr.

Klasic, he felt the Board should go forward.



Mr. Graves stated that he is willing to hold the August 12

meeting in the open, including the discussion of qualifi-

cations of the candidates, and urged the members of the

Board to vote for this. In addition, the Board should

direct General Counsel Klasic to adjudicate this matter,

so that the Board of Regents will have direction. Mr.

Graves noted that each search committee in progress at this

time is deciding what action it will pursue, either con-

ducting an open search, closed search, or hiring an execu-

tive search firm. The Board of Regents should be directing

the search committees, however, is unable to do this, be-

cause it is split on this decision.



President Crowley stated that he did not want to get in-

volved in the questions of law, however this has been a

wonderful and instructive discussion. The Board is grap-

pling with a tremendously difficult problem and there are

not any easy answers to the dilemmas that confront the

Board. President Crowley stated that General Counsel

Klasic's presentation was marvelous on this matter, how-

ever, there are other opinions and the issue needs to be

clarified.



On the subject of openness, President Crowley stated that

the Board has allowed itself to be cornered on that ques-

tion and the public's perception is that the Board does

not conduct its business openly. President Crowley did

not believe that this is an accurate perception, especial-

ly with respect to the searches that the Board has conduct-

ed over the year for the chief executive officer positions.

He felt that phrases have been tossed around with abandon

as if they were easily defined -- open, open government,

public participation, the public's right to know, public

interest.



President Crowley informed the Board that he had attended

a graduate seminar that dealt with the subject of public

interest and the 20 participants were charged with defining

"public interest". The participants were unable to define

"public interest". He did not feel that this was an

"either/or" question, whether it is open government or not.

The Board performs most of its business in the open and

the processes that involve the selection of Presidents and

Chancellors has not yielded the kind of skullduggery that

the media has charged that such processes can yield, and

he did not think that Board should surrender its territory

on this matter. The searches have had a substantial measure

of openness, which they should have.



President Crowley stated that he has spoken with several

people in higher education in the state of Florida and it

is possible to attract good candidates under the Florida

sunshine approach for the selection of chief executive

officers of institutions and systems. There is no doubt

about that, but there is also no doubt that the process

loses qualified candidates who will not subject themselves

to the open process. In Florida, it is a full blown media

exposure, including television cameras. The public's right

to know in Florida, according to those President Crowley

has spoken with, extends to the President's mail. In fact,

President Crowley stated that one of his colleagues must

save his mail to allow for reporters to review the mail

once a week. If this President should throw a piece of

mail away, including an anonymous note, then he is guilty

of a criminal act. The media compile juicy stories from

this that do not advance the cause of higher education.

Nevada's Board of Regents have not been charged with that

extreme case of openness, it has been charged with conduct-

ing interviews in the open and discussing the candidate's

qualifications in the open. President Crowley offered his

personal opinion, in that neither of those issues are

positive in the sense of allowing openness about everything

and advancing the public's interest and good government.



President Crowley stated that in his opinion that much

damage is likely in Nevada by having interviews conducted

in the open and that process can be utilized in many ways,

such as having the candidates make presentations at open

sessions and request several persons and groups to partici-

pate. He stated that conducting interviews and discussing

the qualifications of the candidates would also be accept-

able to conduct in the open. However, by conducting an open

interview, the Committee will not be able to seriously dis-

cuss the qualifications of the candidates. Ironically, this

lends itself to closed government, because questions have to

be asked and shared with the Committee members and this is

then conducted in private sessions. President Crowley

strongly felt that this would be the case if the Committee

should conduct interviews in the open, and informed the

Board that this process happens throughout the country.



Finally, President Crowley stated that this is a question

of tremendous public importance; how this body selects its

chief executive officers now and in the future. It is in

the Board's interest to learn as quickly as possible what

the law will compel the Board to do in this matter, and to

get the Board out in front of this question whether or not

to conduct open or closed sessions.



Interim Chancellor Richardson informed the Board that the

President of the Humphrey Institute at the University of

Minnesota, Harland, Cleveland, wrote a book which exams the

issue of selection of College and University Presidents

through open search process as opposed to one that had some

measure of confidentiality associated with the process. He

made a very important point in this book that while the

media tries to portray this as open versus closed, or open

versus secret process, it is not really the issue that is

confronted. The issue is one of tension between a public

Board's responsibility to hire the best chief executive

officers they can and the process that leads to that, versus

the public's right to know about that process. Obviously,

the media comes down on the side of the public's right to

know about the process. However, Dr. Cleveland argues that

is not necessarily in the public's best interest. In the

long run the public's best interest is probably best served

by securing the best executive leadership that can be secur-

ed. Dr. Richardson agreed and did not see this issue in

terms of openness versus secretiveness. He stated that it

is in terms of securing the best qualified person for the

position.



Dr. Richardson stated that from a perspective of having gone

through both types of searches in his professional career,

he would never go through a completely open search process

again, because the personal risk is just too great. There

are several people in this profession across the country

that feel the same way.



Dr. Richardson stated that this is a sufficiently important

issue that it ought to be adjudicated by the courts. He

stated that he had great difficulty as the Interim Chancel-

lor to believe that the Chancellor is a public officer.

There are those who argue because of the responsibilities

which the position carries forth, it is obvious that the

position is a public officer. However, the Board should be

reminded that the Board is a constitutional board, which is

a distinction not shared by many boards across the country.

Constitutional boards have much stronger powers than statu-

torily created boards. In addition, Nevada's Board of Re-

gents is an elected constitutional board which also carries

responsibilities. Dr. Richardson stated that he felt that

the Board and its members are the public officers, not the

Chancellor. This issue needs to be clarified.



Finally, Dr. Richardson stated that it is one thing to con-

duct the inverviews in public, which can be done without

much damage. However, it is quite another issue to try to

conduct meaningful deliberations about the strengths and

weaknesses of candidates in a public meeting. This will

not happen and it should be obvious to all concerned that

it will not happen in the open. It is not in the best

interest of the public to drive it underground, because

it will happen this way, and he has seen it happen across

the country. Dr. Richardson stated that he believes that

it is in the best interest of this Board to pursue this

matter legally and to get it resolved in the courts. If

the Board chooses to conduct the interviews in the open,

it is certainly the Board's choice; however, he encouraged

the Board to seek a determination of A) is the Chancellor

a public officer; and B) how the Board can proceed in this

search and other searches in the future?



Chairman Eardley stated the common sense of applicants is

that once the 5 applicants allowed their names to become

public, it was because they were now being considered as

semi-finalists. This is much different than being 100th

in a pool of applicants for a position. This process may

create a search process for the future in how the Board

conducts searches. The Search Committee conducting the

interviews will allow for an open session once semi-

finalists are selected.



Chairman Eardley stated that he did not appreciate being

threatened by a letter from an attorney, who has sent the

same letter to each member of the Board. Dr. Eardley stated

that he has served on the Board of Regents for the past 8

years and has never participated in any secret meeting.

The meetings have always been conducted in the open and the

media has implied that this Board has conducted past meet-

ings in the closed. Editorials have been written, especial-

ly by a local newspaper, and Dr. Eardley did not even think

that that individual has ever attended a Board meeting.



He continued that at least 90% of the Board's time has been

spent on many issues to assist higher education in Nevada.

The members of the Board of Regents have worked hard and

without pay and are very dedicated to the mission of higher

education. The Board does not need reporters "slapping"

the Board every time they think they have an opportunity.



Dr. Eardley stated that he had received a letter from

General Counsel Klasic advising the members of the Board

that the attorney who had sent the threatening letter to

each member of the Board has been reported, due to Supreme

Court Ruling 182, which states, "In representing a client,

a lawyer shall not communicate about the subject of repre-

sentation with a party the lawyer knows to be represented

by another lawyer in the matter, unless the lawyer has con-

sent of the other lawyer and has authorization to do so."

General Counsel Klasic had not even received a copy of the

attorney's letter which makes threats to the Board members.



Dr. Eardley stated that the 5 applicants could be screened

down in an open interview by the Search Committee which

would eventually narrow the applicant pool to 3 finalists

which would then be forwarded onto the Board of Regents.

The Board would then deliberate in open meeting with the

Chairman of the Search Committee who would give a pres-

entation on the candidates, and then the full Board of Re-

gents would then make the final appointment. The Board's

General Counsel should seek resolution to these other

problems outside this current search for a new Chancellor.



Chancellor Eardley stated that the Board of Regents and

its ad hoc Chancellor's Search Committee has been at this

process for too long and he encouraged the members of the

Board to vote for an open process and direct the General

Counsel to seek clarification from the court system.



Mr. Graves moved that the ad hoc Chancellor's Search Commit-

tee be directed to hold its August 12, 1994 meeting in the

open. In addition, the General Counsel be directed to pur-

sue declaratory action and relief in this matter as well

as the issue that was addressed almost a year ago as to

the Open Records Law dealing with all applicant names being

released. Mrs. Gallagher seconded.



Upon questioning, Mr. Graves explained that all Chancellor

candidates have been notified that by Nevada Revised Statute

the Board of Regents may elect to have a closed session,

thereby saying that if the Board does not elect to have a

closed session, then it will be opened.



General Counsel Klasic stated that he was troubled with a

portion of the above motion that insinuates that no matter

what happens the August 12 meeting will be held in open

session.



Mr. Graves moved to amend the motion to stated that unless

otherwise adjudicated to hold the August 12 meeting in the

open session. Dr. Hammargren seconded the amendment.



Dr. Hammargren questioned whether the Attorney General has

rendered an opinion or not, because the discussion has ad-

dressed Mr. Wallach's letter who indicates that the Attorney

General has issued an informal opinion. He questioned whose

authority is being disputed by the Board and which court

will adjudicate this issue. General Counsel Klasic respond-

ed that one of the local State District Courts would hear

this case. In reference to the Attorney General's opinion,

Mr. Klasic responded that after an issue has been received

by the Attorney General's office, input is given on the

issue from throughout the office and an opinion is issued

over the name of the Attorney General. Either the Attorney

General personally signs the opinion, or it is signed "X

Attorney General, by X Deputy Attorney General". An opin-

ion that is issued by a Deputy Attorney General can either

be a published or an unpublished opinion. In either event,

it is a formal opinion. A published opinion receives a

number and it appears in a published booklet, whereas an

unpublished opinion is given in a letter format. In this

case, Mr. Klasic stated that Deputy Attorney General Auer

put together an internal memorandum which reflects his

opinion to the Attorney General. The Attorney General has

not formally accepted or adopted this opinion. Mr. Klasic

stated that he would presume that by the mere fact that the

Attorney General released that internal memorandum to the

public sector, that she has, in fact, adopted Mr. Auer's

opinion.



Mr. Foley indicated that he had a problem with the motion,

although he did agree that the Board must seek litigation

on this matter. In order to litigate on declaratory judge-

ment, there must be a case in controversy. If the Board

is to proceed with conducting an open meeting on August 12,

as stated in the motion, then the Press will have to chal-

lenge that issue, otherwise there is no controversy and

there is not a case.



Mr. Klasic agreed. If a decision is made to allow the Board

of Regents to conduct a meeting in the open, then there is

not a case in controversy because the Board would then be

agreeing with the Attorney General's opinion. The wording

in the motion reads, "... hold the meeting in the open un-

less otherwise adjudicated". Mr. Klasic stated that he

will not be able to appear before District Court and re-

quest that it adjudicate that the Attorney General is wrong,

because the Board has agreed with the Attorney General.



Mr. Klasic suggested that 1) a decision be made to conduct

the meeting in closed session, unless otherwise adjudicated,

and that General Counsel be directed to pursue a declara-

tory action or relief, or 2) a decision not be made on

whether the Board will conduct either an open or closed

session, but just indicate that General Counsel is directed

to seek declaratory relief. This will still cause an ad-

verse situation, because there is one attorney saying one

thing and the Board's General Counsel saying another, and

the issue is rather open on August 12 as to how the meeting

will be conducted. The case of controversy will still exist

if the Board opts for the second suggestion.



Upon questioning, Mr. Klaich interpreted Mr. Klasic's sug-

gestions as stating that the Board must decide which way to

go, and not to ride the fence on this matter.



Mrs. Price requested clarification on the motion. As she

understood the motion it seemed to be there are two dif-

ferent issues being discussed. One being that the August

12 meeting should be conducted in the open; however, that

does not solve any of the issues at hand. The second issue

regards the Open Records Law with regard to the candidates

and the applications that have been received. The Board

has 3 different search processes, and as far as she was

aware, no members of the Press or any other group had ever

asked for those applications and unless that should happen

there is no controversy. Now, if the Board wishes to

create a controversy in order to get the issue into court

to ask a question, and the Press does not ask for any of

the applications, Mr. Price stated that she would be happy

to do whatever she can to create a controversy.



Mr. Graves withdrew the motion.



Mrs. Berkley stated that this is exactly what happened last

January when the Board should have gone to court at that

time, but voted instead to terminate the search. When it

was time to go to court, the Board was told that it couldn't

because there was no case in controversy. Mrs. Berkley felt

that it was absolutely critical that this issue be adjudi-

cated and a decision rendered by a court of confident juris-

diction. This motion should be worded in a way that the

Board can be heard before a court. She suggested that the

motion be worded, and allow the Board of Regents to conduct

its meeting in closed session, unless otherwise advised in

a court of law. This should give the Board a case in con-

troversy, which will permit General Counsel to appear before

a court to get this matter adjudicated.



Mrs. Berkley stated that it was her understanding that pri-

vate organizations could not request opinions from the

Attorney General, nor she did not think that individual

members of the Board of Regents could request the Attorney

General's office for opinions. It was her understanding

that the full Board of Regents were able to request such

opinions.



Mrs. Price questioned Mrs. Berkley on two different issues;

that of 1) whether the Chancellor, further the Presidents,

is a public officer or not, and 2) whether the candidates'

applications are public records.



These are two entirely different controversies that need to

be clarified and taken to court, and then, separately there

was the question of what the Board wished to do for the

meeting on August 12.



Mrs. Price moved approval to conduct the ad hoc Chancellor

Search Committee meeting on the open on August 12, 1994

for the purpose of interviews.



Mrs. Berkley stated in accordance with what General Counsel

Klasic has reported that if the meeting is conducted in the

open, then the Board no longer has a case in controversy.



Mrs. Whitley questioned whether the interviews were of the

semi-finalists and the finalists, which should be public

interviews. Chairman Eardley agreed, although Interim

Chancellor Richardson disagreed. Mrs. Whitley stated

that the confusion lies with that the Board is arguing the

wrong point.



Dr. Hammargren seconded.



Dr. Hammargren suggested the motion should be amended to

include pursuing with one of the other Presidential searches

the litigation as to whether or not this is an acceptable

process to conduct interviews.



Mrs. Sparks clarified that these are not finalists for the

position of Chancellor, but semi-finalists. After the

interviews are conducted, then finalists will be selected

by the ad hoc Committee.



Mrs. Berkley made a point of clarification that General

Counsel Klasic stated that if the Board decides to conduct

an open meeting, then there is no longer a case of contro-

versy to adjudicate.



Mrs. Price amended the motion to include discussion of

candidates. Dr. Hammargren seconded.



Discussion ensued on whether this motion would allow for

adjudication by the courts, with Mr. Klasic saying it

would not.



Mrs. Sparks stated that once again the Board has been

challenged and it has not been responsive. If the Board

does not respond to this challenge in a responsible way,

then Mrs. Sparks felt that the Board would be failing in

its responsibilities as elected officers. The Board is

relinquishing its constitutional autonomy and diminishing

the credibility of the Board. She questioned that if the

Board decides to conduct an open meeting, would the ad hoc

CCSN Presidential Search Committee be required to conduct

its business in the open, along with the UNLV Presidential

Search Committee. The Board must make a decision because

it is spending thousands of dollars and man hours, and now

it seems that the motion is addressing something that will

not even challenge the questions before the Board.



Chairman Eardley questioned General Counsel Klasic on

whether there is any law or legislative mandate that ad-

dresses Presidents. Mr. Klasic stated that the President's

issue has not yet progressed to the point of a case in con-

troversy, because the issue has never been raised. Mr.

Klasic stated that it would be very difficult for the

Attorney General to reach a conclusion that the Presidents

should be considered as a public officer, since there is

not a statute, which Mr. Klasic is aware of, that actually

creates the position of President as a branch of the Uni-

versity. Therefore, the very first test of what constitutes

a public office has not been met.



Dr. Derby stated that in response to Mrs. Sparks' comments,

that she would welcome the clarification, because it is

very tough Chairing a search committee when there is a cloud

of confusion that hangs over the process without knowing and

being clear on what is permissible and what is not. How-

ever, on the other hand, Dr. Derby stated that when it is

tied to this issue, it is her understanding that the nar-

rower issue before the Board at this time is how to proceed

in terms of the August 12 meeting. She stated that she was

very comfortable in supporting an open meeting. The can-

didates have been announced and the Committee should go

forward with an open process. Some candor will be lost,

but it will not be that serious and will be manageable.

The value of conducting an open session is worthwhile.



Mr. Klaich stated that the motion on the floor is a poor

motion, not because of the substance of the motion, but

because it potentially deprives the Board, after a full

discussion, of the opportunity to resolve the issue that

is squarely before the Board. He stated that he agreed

with Mrs. Berkley in that there was an opportunity in

December to seek some clarification of a statute, but the

Board did not avail itself to that opportunity. The Board

has another opportunity before it, and it has been fully

discussed. The Board should avail itself to the opportunity

one way or another. Mr. Klaich respectively stated to Mrs.

Price, that the motion on the floor deprives the Board of

really the reason that we are all in attendance at this

meeting. He stated that he would be voting against the

motion, because the Board must face up to the responsibil-

ity of whether the Board is going to proceed in litigation

or not.



Mr. Foley stated that each of the members of the Board are

guilty of wishful thinking by expecting a decision from

the court by the August 12 meeting. There is nothing in

the world to stop the Board from having a decision appealed

to the Supreme Court. In the meantime, the decision stands.

He explained that a judgement in low court is a final

judgement until reversed. If the District Court decides

that the Chancellor is not a public officer, and it is

appealed, then what will happen to the progress that has

been made thus far. Will the Board have to abort this

search in order to go before the court? That would be

nonsense. Mr. Foley stated that the best wsy to proceed

is to assert the Board's autonomy as a constitutional body,

and it seems that each member of the Board is in agreement

with General Counsel Klasic's opinion. In order to bring

this about is to wait to see what the Nevada State Press

Association does in this regard. He encouraged the members

of the Board to vote in favor of the motion in order to

proceed and conclude this search.



Roll Call Vote:



Aye: Regents Derby, Foley, Hammargren, Price



Nay: Regents Berkley, Gallagher, Graves, Klaich,

Sparks, Whitley



Motion failed.



Mrs. Berkley suggested an alternative motion for the sole

purpose of adjudicating this issue and not to make the

determination of whether or not searches in the future will

be conducted in either closed or open sessions.



Mrs. Berkley moved approval that the August 12 interviews

be done in private, to give the attorney the opportunity

to litigate this matter by continuing a case a controversy.



Dr. Derby made a point of clarification on the motion,

that if the Board just defeated the idea of having an open

meeting, clearly it is a closed meeting.



Mrs. Berkley restated the motion to read that the Board

instruct General Counsel to pursue a declaratory judge-

ment with the most deliberate speed. Mrs. Price seconded.



Roll Call Vote:



Aye: Regents Berkley, Derby, Gallagher, Graves,

Price, Sparks, Whitley



Nay: Regents Foley, Hammargren, Klaich



The motion carried.



The meeting adjourned at 1:40 P.M.



Mary Lou Moser

Secretary of the Board

07-20-1994