The University Record, October 29, 1996

Regents 'hamstrung' by Open Meetings Act, court decision, Power says

(Editor's Note: Regent Philip Power is chairman of Suburban Communications Corp., which publishes 40 community newspapers in Michigan. Below is a reprint of his column that appeared in his newspapers last week on the search for a new president.)


Consider this:

Suppose you are a board member of a $2 billion corporation, a world leader in its field but facing troubled times.

Suppose you are searching for a new CEO for the company, competing with other companies in the job market for leadership.

And suppose the Michigan Legislature passed a law which, when interpreted by the courts, ordered you under criminal penalties:


Not to meet one-on-one with candidates for the job;


Not to talk privately about any of the candidates with your search committee or the head hunter you have hired;


Not to use confidential reference checks, letters and phone calls to former employers without releasing them to the public;


Even, get this, not to talk with your fellow board members about the decision except at a public meeting of the board.

And suppose further that these legal requirements deterred many excellent candidates from putting their names forward and, at the last minute, caused one of your finalists to withdraw.

How would you feel?

For starters, how about outraged and hamstrung at this terrible example of absurd and damaging governmental intrusion into your business affairs?

Sounds outlandish? Not at all.

This is exactly what is going on just now at the University of Michigan, where the Board of Regents is working under court order to select a new president in a way that complies with the Michigan Open Meetings Act.

It's clear that the publicity requirements of the Open Meetings Act scared off most sitting presidents from participating in the search, thereby eliminating from the selection pool most everybody with prior experience as a university president.

Then last week the Detroit and Ann Arbor newspapers sued the U-M, claiming the search process set up by the Regents violated the Open Meetings Act. Washtenaw Circuit Judge Melinda Morris ruled that the University had to open up every aspect of the search process and forbade one-on-one meetings between Regents and presidential candidates.

One of the five finalists promptly withdrew, telling [Law School Dean Jeffrey] Lehman, [chair of the Presidential Search Advisory Committee], "I cannot go forward with such a process, because it no longer provides any opportunity for candid discussion about sensitive issues." Search consultant Malcolm McKay pointed out that selection procedures at private universities wisely always offer presidential candidates the chance to get to know, one-on-one, the board members for whom they will be working.

Of course, the newspapers are harumphing that the Open Meetings Act is just wonderful because it requires all public bodies (the U-M Regents are one) always to conduct the public's business (the University is in large part tax supported) entirely in public (i.e. so that reporters can look over shoulders and report about scandal in the background of candidates and back room deals between the Regents).

This absolutist position amounts to saying that a central point of public policy in Michigan should be to place our public universities at an enormous competitive disadvantage versus private schools in searching for competent leadership. Talk about cutting off the nose to spite the face!

The Regents let the public record show clearly that I'm one are going ahead to select a new president, even under the strict terms of Judge Morris' ruling. It won't be easy. But the University needs a new president right now, and the Michigan Constitution says that's our job.

I can only hope we'll get a good candidate.

And when all the fuss is over, I hope the Michigan Legislature will amend this intrusive, poorly-written and counter-productive law to cut trustees some slack in selecting the best possible candidates to run the universities that are among the crown jewels of our state.