Five months prior to former University President James Duderstadt's resignation in September 1995, the Board of Regents paid attorneys $136,309.32 for advice about conducting future presidential searches that would comply with the state's Open Meetings Act.
According to billing records obtained yesterday under the Freedom of Information Act, the regents hired attorneys from two law firms as early as April 4, 1995, to answer questions about OMA.
Regent Shirley McFee (R-Battle Creek) said the board felt it was necessary to consult attorneys about OMA because of a state Supreme Court decision against the University's conduct in a previous presidential search.
"We had decided very early on, if and when we would need to do another search, we would do it right," McFee said. "The regents began very early to start reviewing the process to see what guidelines we should look at.
"We were not anticipating that we would have to use them immediately," she added, referring to Duderstadt's resignation soon after regents began meeting with the attorneys.
McFee served as co-chair of the Presidential Search Committee during the last presidential search.
The University has already spent $224, 884.51 on legal fees for the last presidential search, which began in September 1995 and concluded in November 1996. This figure does not include attorney expenses for OMA consultation prior to Duderstadt's resignation.
Vice President for University Relations Walter Harrison said the regents were concerned about the ambiguity of the court's 1993 ruling, specifically the limitations in their role in the search.
"The regents wanted advice from outside counsel about OMA," Harrison said. "They wondered if there might be other ways to think about OMA and wanted to bring in outside counsel to look at this."
In September 1993, the state Supreme Court ruled that the Board of Regents had violated OMA in its selection of Duderstadt. The Ann Arbor News and the Detroit Free Press filed suit against the University in May 1988, alleging that the board had violated the law by meeting in private, secret sub-quorum groups to interview and evaluate candidates.
To avoid another lawsuit, Harrison said the board began meeting to discuss a variety of hypothetical strategies about presidential searches and the way OMA applied to presidential searches.
"When we made the decision to start doing some research, it was to see what this act said and didn't say," McFee said. "There were some issues we felt were never ruled on by the Supreme Court."
Harrison said the regents explored the possibility of seeking a declarative judgment from the court. This would have required the court to rule on provisions of OMA even though there was not a pending case on which to rule. The regents decided not to pursue a declarative judgment because courts generally do not like to rule when there isn't an active case to rule on, Harrison said.
McFee said the board's meetings about OMA were not related to Duderstadt's resignation.
"It was with the expectation that Duderstadt would be in that position for quite a long time," McFee said. "We found ourselves in immediate action mode faster than we thought we would."
Chemistry Prof. Thomas Dunn, chair of the faculty's governing body, supported the regents' precautionary measures and said it was necessary in order to ensure the search's legality.
"I deplore the fact that we have to do this, but I understand they want to be legal," Dunn said.
Despite extra counseling on OMA, the University was slapped with another lawsuit in this last presidential search, which resulted in the selection of Lee Bollinger. In October, three local newspapers filed suit against the University, alleging the regents had violated OMA by discussing potential candidates in closed meetings.
Washtenaw County Circuit Court Judge Melinda Morris ruled in favor of the newspapers, ordering the regents to release almost all documents pertaining to presidential candidates and to conduct all meetings between regents and candidates in public.
"We did not anticipate that when we reached the point where we had five candidates that the newspapers would challenge us," McFee said. "We thought the judgment was over-restricting. We thought we had done everything right."