By Aaron Harber
In an extraordinary decision which can only be described as a public flailing, the Board of Regents of the University of Colorado – the governing board for the entire CU system – overwhelmingly lost a Colorado Open Records Act (CORA) lawsuit in which the Daily Camera newspaper sought to force the university to disclose the six candidates who actually were finalists in last year’s search for a new system-wide president.
The board’s Democratic and Republican members had unanimously advanced only one candidate as a “finalist” – Mark Kennedy.
The loss of the open records case clearly was not a marginal or even close decision by Denver District Court Judge Bruce Jones. Any objective reading of the judge’s straightforward opinion forces one to come to the following conclusions:
CU attempted to use “linguistic gymnastics” to make its case. The judge wrote, “The Board of Regents’ interpretation of both CORA and COML (Colorado Open Meetings Law) is at odds with the plain and ordinary meaning of these terms. In asserting that the finalist is the person the Board decides to disclose to the public … the Board has inverted the meaning of the statutes.”
He goes on to say, “… the term “finalist” means an applicant “who is a member of the final group of applicants or candidates.” No one disputed there was a final group of candidates.
The word “finalists” means government entities have to disclose everyone they considered at the end of the process – not just the actual candidate they selected. The judge stated, “Under the plain and ordinary meaning of the statutes, there were more than one finalist for the 2019 CU President position. The Court reaches this conclusion by reading the statutory text consistently, harmoniously, and sensibly. In contrast, the Board of Regents’ interpretation conflicts with the plain and ordinary meaning of several words and phrases in CORA. Frankly, it is difficult for this Court to avoid concluding that the Board’s interpretation is designed to justify a pre-determined outcome, rather than to align with the statutes.”
The judge not only concluded the regents misinterpreted the law but did so intentionally so they could name just one candidate and avoid public scrutiny regarding the others who they had agreed were qualified to be finalists.
Why CU should not appeal the decision. The judge’s detailed description of the dictionary definition of “finalist” was a less-than-subtle jab at the regents for trying to convolute the obvious meaning of the term. And there is no question the boldness of his decision’s wording was meant to send a message about the university considering an appeal – in effect, it was “I dare you to try.”
He chided the board for an even more bizarre attempt to obfuscate the arguments by stating, “The Regents’ reliance of the use of failed legislation to bolster their case spoke volumes about its strength.” This expanded his criticism of the board’s use of “linguistic gymnastics” to essentially now include “legal gymnastics.” Using legislative initiatives that did not even pass seemed to assume the reader was not smart enough to distinguish between concepts which became law and ones which never made it.
The judge then turned the tables to cite legislation which actually had passed to bolster his decision: House Bill 94-1234 “defined the term finalist as ‘an applicant or candidate for an executive position who is chosen for an interview or who is still being considered for the position twenty-one days prior to making the appointment, whichever comes first; except that, if six (this number later was amended to three) or fewer applicants or candidates are competing for the executive position, ‘finalist’ means all applicants or candidates.” This law, alone, delivered a crushing blow to the regents’ position.
What does the decision mean? The judge detailed the import of the regents’ action: “Not only was the public deprived of the opportunity to compare Mr. Kennedy to his competitors, but just as importantly, the public could not evaluate the Board’s performance in selecting Mr. Kennedy as the only finalist when information regarding his competition was kept secret. The members of the Board, of course, are elected by the citizens of this State, who should be able to assess Board decisions, particularly one as critical as selecting a President of the State’s flagship university.”
Clearly, the judge was making a statement about the quality of the board’s decision-making and was reminding voters that their decisions have important consequences.
Why transparency benefits everyone – including the regents. The result of the board’s lack of transparency was a black eye. Given the negative reaction by faculty, students, staff, alumni and Colorado citizens, the board should be able to now see it could have avoided the public relations disaster simply by following the law.
The Board of Regents faces a special challenge of which most Colorado citizens are unaware – unlike any other institution, it is a sovereign entity based on how it was created by the Colorado Constitution. Like Native American tribes identified as sovereign nations by federal law, Colorado law gives CU the ability to make decisions, often without regard to the positions or rules of other entities.
Sovereignty represents a grant of extraordinary independence and power. CU can make its own laws, called “Regent Law.” But having this authority can be corrupting and the regents need to make certain they don’t become arrogant or abuse their singular authority.
What happened in 2019 illustrates how transparency promotes good government and helps our leaders avoid bad decisions. The incomplete and untimely vetting which occurred was due to the regents’ avoidance of their disclosure responsibilities. It rebounded to hurt them and the university.
A more transparent process ultimately may have resulted in the same hiring decision but, at the minimum, that decision would have been made with everyone being fully informed in a timely manner. That would have helped create the invaluable “buy in” every academic institution needs.
Hopefully, the regents have learned from this experience and will make a formal commitment to transparency in the future.
How should CU and the regents respond? First, the board should decline the opportunity to appeal the decision. All that is likely to do is expand the scope and finality of the judge’s decision while wasting legal fees and doing further damage to CU’s reputation.
It is too easy for government entities to use funds that come from the pockets of other people (usually just taxpayers but, in this case, students and parents) to engage in senseless litigation. Save everyone’s money and avoid the temptation of filing an appeal. If there are regents who want to appeal, they should spend their own money.
Second, most importantly, the board needs to reflect on the example it sets for its students, faculty, staff, and alumni, as well as for the many other citizens of Colorado. Using “linguistic gymnastics,” avoiding the accepted definition of simple words, making promises (i.e., to candidates about confidentiality of their applications) which cannot be kept, and spending other people’s money for expensive and nonsensical litigation is not what a great institution such as CU truly should stand for.
Third, the board should embrace the principles of transparency, not only because it is the right thing to do, however uncomfortable it may be at times, but also because it ultimately will promote good decision-making and increase the public’s confidence and trust in our otherwise extraordinary flagship institution of higher education.
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