Apr 14, 2008 - 04:05:04 CDT
Much has been made of North Dakota's open meetings and open records laws in conjunction with the University of North Dakota presidential search. I will say, at the outset, I think the search yielded a fine president-designate for UND. Bob Kelley has solid leadership experience and should be a fine leader for our university.That said, I believe our open records and meetings laws served to curtail the number of candidates. These laws in no small way were responsible for the fact that only one candidate was presented to the state Board of Higher Eduucation and were thus responsible for some of the negative stuff that went on at the conclusion of the search. The open records and open meetings laws worked against the public interest in North Dakota in this particular case in several fundamental ways.
First of all, any would-be candidate who happened to be a sitting president would have been loathe to submit his or her name and endure the inevitable criticism "back home" with what should and could have been a 1 in 100 chance of ultimately being selected. Most presidents would find these odds not worth it. The result was no sitting presidents in the pool and relatively few provosts. A search for a presidency of a university of UND's stature should have produced more than 100 expressions of interest, and among these should have been at least a dozen sitting presidents.
The second big hit that resulted from the openness of our open records law and regular publication of applicant names and other information as applications were received, is that potential candidates looking in from the outside would have seen immediately that there were four internal candidates. It would have appeared to potential external candidates that the search would likely end up as an "inside job" - another flag warding off sitting presidents and other external candidates.
Search committee meetings with - and about - candidates in the early and intermediate stages of a search, with reporters listening in for sound bites and cameras rolling, are stifled. Questions that should be asked are not asked. Opinions that should be voiced are not voiced, and the process is corrupted. Faculty and staff in such circumstances would be understandably reluctant to say anything negative about a candidate to whom they currently report or about one who could well end up being appointed. The point to these downsides is that openness to what happens is an illusion because openness in the extreme changes what happens - and not for the better. Openness is generally a good thing.
Too much of any good thing, however, is bad.
Given the downsides, is there really a significant public interest in knowing all of the candidates early in a search when there may be 80-100 candidates? I don't think so. North Dakota is one of a small number of states in which university officials are required to disclose all names and documents as soon as applications are filed. Likewise, North Dakota is among a small minority of states that do not permit at least some closed search committee meetings early in the search process.
If a group of good people are selected to serve on a search committee and they have to operate in plain sight of one another, this is enough to ensure the public needs that the search will be conducted in accordance with fairness and the law. It should be simple enough to make sure that search committees are selected with checks and balances across stakeholder interest groups.
Presidential and other searches are not the only problem. North Dakota's open records laws subvert the public interest in other ways, as well.
In North Dakota, unlike in many other states, even personnel records and performance reviews are open to the public. Anyone can ask for, and get, a public employee's personnel file. Anyone doing a personnel evaluation, knowing that what he or she writes could become public - even without the permission of the individual being evaluated - would tend to soften the evaluation. This, in turn, prevents a forthright paper trail from being laid down in those rare cases that ultimately and legitimately lead to the termination of an employee. A consequence is that relatively straightforward employment issues too often end up in the courts.
Personnel evaluations should be exempt from the open records law, as is the case in most states. Why not treat personnel records the same way we treat health and other information protected by privacy laws?
It is beyond irrational that because of federal privacy laws, we cannot give student grade records to parents without the student's permission, but in North Dakota we must give performance review information to anyone off the street.
While openness is generally a good thing, our open-records and open-meetings laws go too far. We should make them more rational.
(Kupchella is president of the University of North Dakota. - Editor)
Susan Beehler wrote on Apr 14, 2008 5:27 PM:
To Edward: As far as I know we the people can't directly elect the President of UND, so how would your answer be a solution? Mr. Kupchella could lobby the legislature to modify this portion of the open records law if he feels strongly about it. "
My Opinion wrote on Apr 14, 2008 1:53 PM:
A reader wrote on Apr 14, 2008 10:51 AM:
Anyway, I've seen it happen personally. People aren't willing to apply if they know it is instantly public record. That now means your CURRENT job is going to be looking at replacing you soon, since you are apparently looking. "
My Opinion wrote on Apr 14, 2008 9:22 AM:
Edward wrote on Apr 14, 2008 9:21 AM:
Boo Hoo wrote on Apr 14, 2008 8:45 AM:
rational wrote on Apr 14, 2008 5:42 AM:
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