The University Record, October 21, 1996

Newspapers' lawsuit cost the U a finalist, Lehman says

In presenting to the Board of Regents, sitting as the Presidential Search Committee, the list of unranked recommended finalists for the presidency, Presidential Search Advisory Committee (PSAC) Chair Jeffrey Lehman noted last Thursday, "It is time to share with you our regrets and our excitement about the people we recommend to you today.

"First, the subject of regrets. And, in truth, I have but one.

"I deeply regret the fact that we have only four names to bring forward to you today. The PSAC has, at this time, only four names whom we are endorsing and who have committed to participate in the final phase.

"If we had been able to hold this morning's session on Monday morning, as originally scheduled, we would have brought you five names.

"But late yesterday morning one of those five called me and withdrew. That person withdrew because, between Monday and this morning, our final phase had been restructured. Originally, it was expected that any finalist who so desired could, after enduring a public interview with the Board, hold private meetings with individual Regents, to explore each one's views about the University and its governance.

"But as you are all too aware, a preliminary injunction prohibits those meetings from taking place.

"And so yesterday one of our five recommended finalists withdrew from consideration for the presidency. This candidate said, and I paraphrase:

'I cannot go forward with such a process, because it no longer provides any opportunity for candid conversations about sensitive issues. Without that opportunity, I am no longer sufficiently confident that I will be able to assess adequately whether I could accept the presidency at Michigan, if it were ultimately offered to me. And without that opportunity, I am no longer sufficiently confident that your Board of Regents will be able to make a fully informed choice.'

"Members of the Board of Regents," Lehman said, "the actions of the newspaper[s] have harmed this University, by depriving you of the option of selecting that candidate.

"The citizens of Michigan and the residents of Ann Arbor have an enormous financial, cultural and emotional stake in the success of this University. They are hurt when you have less than a full range of choice about who should lead us into the next century. So are our students, our faculty, our staff, our alumni, and all those around the world who care about Michigan.

"And yet, members of the Board, as much as the regret that we feel over the withdrawal of our fifth candidate, we are even more excited to be able to report that the other four candidates are willing to remain in this modified process. For they are truly a remarkable group.

"This is a great University. It makes unique contributions to the people of this city, this state, this nation, and the world. It deserves a leader who embodies its own remarkable quality.

"And we bring you not one but four.

"It is with enormous pride that we, your Presidential Search Advisory Committee, urge you to name them, and only them, as finalists. Because we are here today, united, to place our individual and collective reputations behind them."


Last-minute legal entanglements

On Oct. 8, the University held a briefing for members of the press that outlined a series of activities in the final phase of the presidential search. The activities would have included open meetings as well as the opportunity for the candidates to meet privately with individual Regents and any other University officials with whom they wished to talk.

The timetable would have been as follows:

Monday, Oct. 14

The PSC was to have met at 9 a.m. in an open meeting. Joining the Regents would have been PSAC Chair Jeffrey Lehman; Malcolm MacKay of Russell Reynolds Associates, Inc., the consultant hired by the Board of Regents to assist in the presidential search; and all members of the Presidential Search Advisory Committee.

Lehman was to have publicly presented the names of five candidates recommended by the Presidential Search Advisory Committee, which individual Regents would have received the previous day. Along with the individuals' names, Regents would have received their curricula vitae and other materials relevant to the candidates' qualifications.

In addition, Regents were to receive the names and positions of all individuals who applied or were nominated for the presidency.

All materials distributed to the PSC at the meeting were to be given to members of the media.

In the afternoon the Regents were scheduled to individually review the contents of all applicants' and nominees' materials, as well as confidential materials collected by the Presidential Search Advisory Committee. Lehman and MacKay were to be available to meet separately with individual Regents to answer questions about the materials.

Tuesday, Oct. 15

The Presidential Search Committee was scheduled to meet to review applications. The meeting would have been closed.

The Michigan Open Meetings Act allows a public body to conduct a closed session to review job applications if an individual has asked that his or her application materials be considered in confidence. Regents are prohibited from making a decision in a closed meeting. Lehman and MacKay were to be available to answer questions about the materials.

Wednesday, Oct. 16

The Presidential Search Committee would have met in a public meeting to consider and adopt a list of finalists for the presidency.

Thursday, Oct. 17, and following

Finalists were to begin visiting campus for a series of meetings. Plans were for each candidate to be invited for a day-and-a-half, including an overnight stay.

While on campus, each finalist was to:
---Be interviewed by the Presidential Search Committee in a public meeting.
---Meet with members of the University community and the general public in a town meeting setting.
---Meet individually with Interim President Homer A. Neal; Provost and Executive Vice President for Academic Affairs J. Bernard Machen; Executive Vice President and Chief Financial Officer Farris W. Womack; and other Executive Officers as requested by the candidate. The meetings were to be private.
---Attend an evening social function with a mix of invited guests.
---If requested by the candidate, meet separately with Regents.
---If requested by the candidate, meet with any other individuals.

On Oct. 11, a lawsuit was filed by the Herald Co., doing business as Booth Newspapers, the Ann Arbor News, Detroit Free Press, and the Detroit News to halt the search, claiming the University was violating the Open Meetings Act.

A temporary restraining order was issued that afternoon by Washtenaw County Judge Timothy P. Connors, halting the search. A show-cause hearing was scheduled for Oct. 15 before Circuit Court Judge Melinda Morris to determine if a preliminary injunctions should be entered against the University, continuing to halt the search.

Until that time, Connors ordered the University to "refrain . . . from engaging in any actions of any kind whatsoever with respect to the 1996 presidential search" until the conclusion of the show-cause hearing.

Morris ruled late on Oct. 15 that the University could continue the search, but with modifications.

Morris said the PSC could meet in a closed session, but only to review application information that candidates had asked remain confidential. She restricted discussion by the Regents to the specific contents of the candidates' applications.

In addition, Morris ruled that individual Regents would not be permitted to review privately the entire contents of candidates' applications with Jeffrey Lehman or the search consultant, as originally scheduled.

She also ruled that the Regents could not conduct private one-on-one conferences with candidates, even if they were requested by the candidates themselves.

As a result of that ruling the Board of Regents announced changes to the selection process to conform to the court order.

In announcing the change in the process, Vice President for University Relations Walter Harrison said:

"As a practical matter, the effect of this court order brought on by the Ann Arbor News, the Detroit Free Press and the Detroit News is to limit the amount of information available to the Regents. While the Regents have severe reservations about these restrictions on how they perform their constitutional duty to choose a president, given the court's decision, they believe strongly that their most important responsibility at this point in the University's history is to select the best possible person as president."

The new timetable called for the open meeting on Oct. 17 at which the PSC would receive the names of five individuals recommended for candidacy for the presidency from the Presidential Search Advisory Committee.

Following that meeting, the Regents would review background materials on all individuals who had been nominated or applied for the presidency. This was a study session for the Regents and media were allowed to attend.

On the morning of Oct. 18 the PSC would meet in closed session to review the specific contents of certain applications. The Open Meetings Act allows the Regents to conduct a closed session to review job applications if an individual requests that his or her applications materials be considered in confidence. The Regents were not permitted to make any decisions in this meeting.