Massachusetts Daily Collegian

Coakley: Trustees violated open meeting law in search for president

By Sam Butterfield

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The Board which appointed Robert Caret President of the University of Massachusetts violated numerous open meeting statutes throughout the selection process, a Thursday report found.

A version of this article was originally published Aug. 5 on DailyCollegian.com.

The office of Massachusetts Attorney General Martha Coakley has issued a 17-page report detailing numerous Open Meeting Law violations by the University of Massachusetts Board of Trustees during the search for a new UMass system president last winter.

The report, conducted by the Office’s Division of Open Government and addressed to the University’s general counsel, Deirdre Heatwole, states that the board’s violations were “wide ranging and serious,” and that they “demonstrate a pressing need for additional education and training with respect to the duties and obligations imposed by the law.”

Further, the letter states that the Attorney General’s office is “hopeful that the ordered training and scrutiny will have a lasting influence on the way that the Board and its subcommittees conduct business.”

The report holds that the board, led by Chairman James Karam, did not provide ample notice to the public of upcoming meetings and that, when notices were put forth, they were inadequately detailed. Further, the investigation found that the board would continue closed-door executive sessions from one meeting to the next, a violation, and that three finalists for the position were interviewed exclusively in executive session, rather than during public forums, which is also a violation.

Immediately after the Presidential Search Committee recommended the three finalists on Jan. 13, the board took a public vote and appointed Robert Caret the next UMass president. After the Boston Globe reported that the board was meeting in executive session to interview the three finalists, Assistant Attorney General Britte McBride called board members, according to the report, expressing “concern that the Board would enter executive session to interview finalists in violation of Open Meeting Law.” Board members “assured her that the Board would only enter executive session for proper purposes.”

In addition, the report found that minutes from both open and executive sessions were scant, essentially keeping the public in the dark to what was at the crux of the board’s deliberations. Further, the investigation found that the board used false pretenses to enter executive session, claiming the need for secrecy to discuss matters that should have been addressed publicly.

“The evidence demonstrates that the Board attempted to force very real and pertinent questions about professional competence into the rubric of ‘reputation and character’ so that the interviews and debate could be conducted behind closed doors,” the letter, drafted by Assistant Attorney General Jonathan Sclarsic, states.

In total, the investigation details six areas where the board violated Open Meeting Law throughout the search. They include holding an unlawful executive session on Jan. 13 to discuss finalists for the presidency, with the sub-clauses of discussing topics beyond the range allowed in executive session and citing purposes for executive session which did not apply to the discussion taking place; allowing board members to participate via telephone; failing to provide notice of meetings and failing to follow the required procedure for entering executive session; failing to log proper minutes; failing to list the topics that would be discussed in notices of meetings; and creating a subcommittee which also failed to follow Open Meeting Law.

In response to the violations, Coakley’s office is mandating that the board receive Open Meeting Law training before it selects a replacement for UMass Amherst Chancellor Robert Holub and has ordered the release of all of the board’s minutes from the selection process, including minutes from the Jan. 13 executive session. Further, the board will be required to certify to the Division of Open Government that all members have received and read the letter, submit to the division all meeting notices required by Open Meeting Law during the search for the next UMass chancellor, submit to the division copies of all meeting minutes during the new search and to release meeting minutes from the Presidential Search Committee’s meetings last fall.

“This is a strong action that makes clear that these violations should not have occurred, requires the board to take corrective remedies, and works to ensure that the mistakes do not happen again,” Coakley said in a statement issued by her office Thursday, Aug. 4.

The redress is not the strongest it could have been. Attorney General Coakley’s office could have invalidated Caret’s appointment based on the violations, but to do that, it would have been required to find that the violations were intentional, which the report stops short of concluding. Because the board acted on the advice of its counsel, Heatwole, the report finds the violations were not deliberate.

The board held that violations were unintentional, and that interviewing the three finalists in public session could have jeopardized their willingness to accept the position. All three had told the board they would refuse to be interviewed in open session, the AG’s report found.

In a statement, Karam, the board’s chairman, said the trustees strove to complete a search that was “fair, open and transparent and certainly one that conformed to relevant state law.”

“Future searches at the University of Massachusetts will be conducted in a manner that is fully consistent with the Open Meeting Law and with Attorney General’s findings and directives,” Karam’s Aug. 4 statement said.

One open meeting law policy maker, however, said he was frustrated Coakley’s office did not deliver a sterner message that violations of the law, especially by those serving a public university, will not be accepted.

“I was disappointed that the AG’s office did not impose a tougher remedy,” said Robert Ambrogi, a media lawyer and a member of Massachusetts’ Open Meeting Law Advisory Commission and a UMass Amherst alumnus. “Under the law, the AG could have invalidated the actions taken in violation of the law. That is what should have happened, I believe, in order to send a strong message that violations of the law will not be tolerated.”

Sam Butterfield can be reached at [email protected]

 

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