Opposing briefs lay out arguments in Daily Camera’s lawsuit over CU presidential search transparency

By Jeffrey A. Roberts
CFOIC Executive Director

Did the state’s sunshine laws require the University of Colorado regents to publicly name more than one finalist for the president’s job and disclose their job applications?

Opposing briefs filed recently in Denver District Court lay out the legal arguments in the Boulder Daily Camera’s lawsuit challenging transparency aspects of the selection process that led to the hiring last year of Mark Kennedy to lead the CU system. A Feb. 12 hearing is scheduled.

The newspaper’s lawyers, Robert Gunning and Eric Maxfield, argue that the regents violated the Colorado Open Records Act (CORA) and deprived the public of “the right to know who was seriously being considered” for the presidency by not releasing the names and applications of five additional “finalists” interviewed by the board.

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“Critically, the public had no opportunity to compare Mr. Kennedy with the other finalists,” they wrote. “Were they leaders of other educational institutions? What was their fundraising experience? Were they Democrats or Republicans? What was their demographic information? How diverse was the field of finalists?”

The attorneys representing the CU regents, James Lyons and Caitlin McHugh, claim the Camera’s interpretation of CORA and the Colorado Open Meetings Law “goes beyond” the requirements of those statutes and “unnecessarily impedes” the regents’ powers to define the presidential selection process.

“The Daily Camera refers to these candidates as ‘finalists,’ but the Daily Camera’s word choice cannot transform candidates into finalists,” they wrote.

The board of regents faced criticism last spring for its 5-4 party-line vote to hire Kennedy, who was president of the University of North Dakota and a former Republican member of Congress.

The Camera sued the regents in September after the university denied requests for the names and application materials of other applicants who were interviewed. In late December, The Colorado Independent published a leaked list of 30 people who applied the president’s job that included former Gov. Bill Ritter, former Lt. Gov. Donna Lynne, several other prominent Coloradans and the leaders of some large out-of-state colleges and universities.

Both CORA and the open meetings law have something to say about the way state and local public bodies choose “chief executive” positions such as a university president, a school superintendent or a city manager.

The open meetings law requires “the list of all finalists under consideration” be made public no later than 14 days prior to the appointment of one of the finalists to fill a position. The open records law defines finalist as “a member of the final group of applicants or candidates” made public under the requirements of the open meetings law, and it allows the public to inspect most records submitted by a finalist.

CORA adds: “If only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, said applicants or candidates shall be considered finalists.”

“In the face of this clause, the Board of Regents’ position that they may disclose only one finalist when there are more than three individuals who meet the minimum qualifications does not make logical sense,” the Camera’s opening brief contends. “If the statute requires that three finalists be named when only three individuals meet the minimum qualifications, it is absurd to read the statute permitting the disclosure of only one finalist when more than three individuals meet the minimum qualifications.”

Because the six candidates interviewed by the board of regents were in “the final round of competition” for the president’s job, they were “finalists” under the plain and ordinary meaning of the statutory language, the brief also argues. It cites the Merriam-Webster dictionary definitions of “group” and “list” and “member” as evidence “of the legislature’s intent that multiple individuals be disclosed.”

Gunning and Maxfield also researched the legislative history, which included four bills enacted from 1994 to 2001. Prior to 1994, the names and applications of those seeking executive positions were public records subject to disclosure.

House Bill 94-1234 allowed records submitted by non-finalists to be kept confidential. The Camera’s brief quotes then-Sen. Tilman Bishop during a committee hearing: “When you get down to the finalists, we’re going to give them a period of time, and those people are going to have their records, their names known and some of the records be available to the public, to the press or whomever else wants that kind of information.”

“Although the legislation shielded many candidates’ names from public view, the unequivocal intent was for the press and public to learn the identity of all of the finalists, so that the press could investigate and ‘learn who these people are’ before the position was filled,” the brief says.

But the three bills enacted after 1994 added more protection for job candidates and provided “greater discretion to hiring bodies as to which candidates must be disclosed as finalists,” the regents’ lawyers say in their response brief. “And, despite revisiting these provisions repeatedly over the years, the General Assembly never added a requirement that an institution must identify more than one finalist.”

The CU brief says the CORA language pertaining to three or fewer applicants “is only applicable in circumstances where there are three or fewer qualified candidates. It is undisputed that there were more than three qualified candidates in the search for University president.” The brief also cites an unsuccessful 2009 bill that would have explicitly required higher-education institutions to make public the identities of interviewed finalists and have the finalists make presentations to an institution’s community before a board vote is taken.

The regents withheld the applications of the other five candidates referred by a search committee because they were not considered finalists under their presidential-selection policy or state law, the university’s lawyers argue. Neither CORA nor the open meetings law are “intended to substantively dictate how public bodies select their chief executives,” they wrote, nor do they require the regents to identify a minimum number of finalists.

“While lists may contain numerous items, a grocery list is still a list with only one item, a to-do list is still a list if it contains only one task,” the regents’ brief states.

Lyons and McHugh, the lawyers for CU, also contend that the Camera’s interpretation of the laws is contrary to the regents’ standing in the Colorado Constitution and their statutory authority to elect a president. “Moreover, this interpretation would unnecessarily disclose sensitive information about candidates who reasonably believed that their application information would not be publicly disclosed unless they agreed to be finalists.”

In a reply brief, the Camera’s lawyers say they do not contend that CORA and the open meetings law require more than one finalist for a chief executive officer position. “In the event there is only one qualified candidate, there would be only one finalist,” they wrote, but a search firm found multiple qualified candidates for the CU presidency from an initial pool of 180 applicants.

“Requiring the Board of Regents to publicly disclose the identity of the candidates interviewed in the final round will not intrude on the Board’s authority to select a president,” the newspaper argues, “unless the Board views public input and transparency as antithetical to its decision-making process.”

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