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