Ruling yesterday that final stages of the Board of Regents' planned search process were illegal, Washtenaw County Circuit Court Judge Melinda Morris put new limitations on the search for the 12th University president.
After seven hours of legal discussions and debates, Morris issued a preliminary injunction against the regents that now prevents them from holding some closed meetings. They also must release almost all documents pertaining to presidential candidates.
The lawsuit - filed jointly by The Ann Arbor News, The Detroit News and The Detroit Free Press - decided that the final part of the University's search plan violated both a prior permanent injunction against the University and state laws that say presidential searches cannot be conducted in secret.
"What we're asking for may seem hard for the University," Jonathan Rowe, the newspapers' attorney, said during yesterday's hearing. "But it is ultimately the policy of the state that this search be open."
In her ruling, Morris systematically addressed the intended search plan and declared two parts completely illegal: the regents' closed meeting to individually review confidential documents and one-on-one meetings between board members and individual presidential candidates.
The court also ruled that a closed question and answer session between the regents, search consultant Malcolm MacKay and Presidential Search Advisory Committee Chair Jeffrey Lehman could be held as long as the board only discusses materials applicants wish to remain confidential.
All three of these meetings were first announced by Vice President for University Relations Walter Harrison at an Oct. 8 briefing. It was the board's intention to begin the final phase of the search last Monday, but the lawsuit, which was filed Friday, delayed the search until the court's hearing yesterday.
"We're profoundly disappointed in the judge's ruling," Harrison said. "Now we're trying to decide whether or how to pursue."
The intended search plan and the court's corresponding rulings are as follows:
n Monday, Oct. 14: Regents were to spend the afternoon individually reviewing all applicants' and nominees' materials, as well as confidential evaluations by PSAC. Lehman and MacKay would be present to answer regents' questions.
Ruling: Morris found this in violation of the Open Meetings Act and would not allow that part of the process to remain. Morris also ruled that candidates' reference materials can be made public after the source's name is removed.
n Yesterday, Oct. 15: The board was to meet in closed sessions to review applications.
Ruling: Morris said the plan was "too general" as written, but ruled that the meetings can remain as long as they are restricted to discussions of materials the applicants request to remain confidential. "My opinion is that (the board) will act in conformity with the law," Morris said.
n Tomorrow, Oct. 17 and beyond: As part of a day-and-a-half campus visitation, candidates could request one-on-one interviews with individual regents.
Ruling: Morris said this segment of the plan was in violation of the state's Open Meetings Act. "The court understands that even though the purpose may be (for the candidate to meet the regent), the effect is that the regents get to know the candidate," Morris said.
Rowe said he was pleased with Morris's ruling.
"I'm delighted that the judge agreed with us that the board's plan again violates the Open Meetings Act," Rowe said.
During 45-minute statements, Rowe and the regents' attorney, Peter Ellsworth, offered different interpretations of state open meetings laws and precedent cases.
Rowe argued that open meetings and the disclosure of documents is mandated under OMA and a 1993 Michigan Supreme Court ruling that said the University could not conduct presidential searches in secret.
Rowe further added that the closed meetings that had been planned for this week would have violated the law, even if public meetings were built into the process.
"What the public will end up with is a charade," Rowe told Morris. "They are not going to see the real heart of the process."
Rowe said the public would not have seen recommendations and applicant evaluations, which he contends serve as a good indicator of leadership traits. He also argued that the public would not have a clear view of how the advisory committee arrived at its top five recommendations.
Ellsworth argued that the board had presented a plan where it would select the next president in public, thus breaking new ground in its efforts to open the process.
"This is a public search - I venture to say the most public search for a university president that has ever been conducted in this state," Ellsworth said.
Ann Arbor News Editor Edward Petykiewicz said the ruling showed the proposed search process was not open enough.
"The court has spoken very strongly," Petykiewicz said. "(The ruling) guarantees the public has access to a very important issue."
The arguments on both sides hinged on a1993 Michigan Supreme Court ruling declaring the search that hired former President James Duderstadt illegal. Although based on a very different search process, that ruling imposed limits on the way future searches can be conducted.
"We're here because we came here before," Rowe said. "We're asking the court to look at this press release, compare it to the Booth case, and see that they're breaking the law again."
Conversely, Ellsworth argued that the board took "great pains" to develop a legal plan, but one that would still allow confidential information about candidates to be discussed in private. "There are certain things that just do not occur in public," he said.
Morris agreed in part with Ellsworth in her ruling and will allow the regents' meeting with MacKay and Lehman to be closed under a narrow OMA exemption. The law says that meetings to discuss personnel issues, like the one that had been scheduled for yesterday, can be closed if the applicant requests that certain information be kept confidential.
"It must be confined to the contents of the application that the applicant has requested be kept confidential," Morris said.
Ellsworth argued that the current regents have tried hard not to repeat the illegalities of the '88 search. Noting that only three of the current board members - Regents Philip Power (D-Ann Arbor), Nellie Varner (D-Detroit) and Deane Baker (R-Ann Arbor) - were present at the last search, Ellsworth said the current board has crafted a different approach to the search.
"This is a board which understood that what it did in 1988 did not comply with the Open Meetings Act," Ellsworth said.
But in his presentation, Rowe said the proposed plan still was illegal, citing meetings where regents could review documents out of public view.
"They are going to have communications outside the public eye," Rowe said. "The public will never know the substance of the evaluation being made, the substance of the candidates."
But Ellsworth said the regents did not intend to discuss the candidates during closed sessions, and thus were acting within the boundaries of the law.
"There was to be ... what I would refer to as basically an individual study session for each regent," Ellsworth said.
Rowe argued that the public has the right to attend this meeting as well. "They're going to talk about issues that should be talked about publicly," he said.
Along with meeting privately with Lehman and MacKay, the regents hoped to have the chance to meet individually with each of the final five candidates.
But Rowe contended that the regents would make conclusions about the candidates in the process of these meetings, and thus make deliberations and gain information outside the public's reach.
"An individual regent who conducts an interview is a public body," Rowe said. "We're playing the same show-game again."
Ellsworth interpreted the law differently, saying the one-on-one meetings would not violate the law unless regents privately discussed the content of these interviews with each other.
"Individual regents are not a public body," Ellsworth said. "These are individual Q and A sessions, that's all."
Before the hearing began just after 4 p.m., participants from both sides spent nearly four hours holed up in judge's chambers attempting to settle the issue independently.
"We're just floating around here," Power said, as the private discussions broke and regents circulated outside the courtroom.
Petykiewicz said no serious out-of-court settlements were ever considered.
"There is not an agreement on the table, nor was there even an attempt to craft one," Petykiewicz said mid-afternoon.
WARREN ZINN/Daily
Washtenaw County Circuit Court Judge Melinda Morris orders the University to open its meetings.