STOP THE MADNESS: TRANSPARENCY AT THE UNIVERSITY OF COLORADO (March 27, 2020)
In an extraordinary decision which can only be described as a public flailing, the Board of Regents of the University of Colorado — the governing board of directors for the entire system — constituted by 75,000 students and 37,000 employees at CU Boulder, UC Denver, UC Colorado Springs, and the Anschutz Campus — just overwhelmingly lost a Colorado Open Records Act (“CORA”) lawsuit in which the Daily Camera newspaper sought to force the University to disclose the six candidates who actually were finalists in last year’s search for a new system-wide President.
The Board’s Democratic and Republican members had unanimously advanced only one candidate — Mark Kennedy — and described him as a “finalist” despite others who were otherwise described as finalists.
The loss of the Open Records case clearly was not a marginal or even close decision by Denver District Court Judge Bruce Jones. Any objective reading of the Judge’s straightforward opinion forces one to come to the following conclusions.
1. The Judge concluded CU attempted to use “linguistic gymnastics” to make its case.
The Judge wrote, “The Board of Regents’ interpretation of both CORA and COML [the Colorado Open Meetings Law] is at odds with the plain and ordinary meaning of these terms. In asserting that the finalist is the person the Board decides to disclose to the public… the Board has inverted the meaning of the statutes.”
He goes on to say, “…the term “finalist” means an applicant “who is a member of the final group of applicants or candidates.” And everyone did not dispute there actually was a final group of candidates yet the Board ignored this and pretended one person could be defined as a “group.”
2. The word “finalists” means State government entities have to disclose everyone they considered at the end of the process — not just the actual candidate they ultimately selected.
The Judge stated, “Under the plain and ordinary meaning of the statutes, there were more than one finalist for the 2019 CU President position. The Court reaches this conclusion by reading the statutory text consistently, harmoniously, and sensibly. In contrast, the Board of Regents’ interpretation conflicts with the plain and ordinary meaning of several words and phrases in CORA. Frankly, it is difficult for this Court to avoid concluding that the Board’s interpretation is designed to justify a pre-determined outcome, rather than to align with the statutes.”
Hence, the Judge not only concluded the Regents misinterpreted the law but stated they did so intentionally so they could name just one candidate and avoid public scrutiny regarding the others who they actually had agreed were qualified to be finalists.
3. Why CU should NOT appeal the decision.
The Judge’s detailed description of the dictionary definition of “finalist” was a less-than-subtle jab at the Regents for trying to convolute the obvious meaning of the term. And there is no question that the boldness of his decision’s wording was meant to send a message to the University about considering an appeal — i.e., in effect, it was “I dare you to try.”
He even chided the Board for an even more bizarre attempt to obfuscate the arguments in the case by stating, “The Regents’ reliance of the use of failed legislation to bolster their case spoke volumes about its strength,” This expanded his criticism of the Board’s use of “linguistic gymnastics” to essentially now include “legal gymnastics.” Using legislative initiatives that did not even pass seemed to assume the reader of the University’s legal brief was not smart enough to distinguish between concepts which became law and ones which never made it.
The Judge then turned the tables to cite legislation which actually had passed to bolster his decision such as the following: “House Bill 94-1234l defined the term finalist as ‘an applicant or candidate for an executive position who is chosen for an interview or who is still being considered for the position twenty-one days prior to making the appointment, whichever comes first; except that, if six [NOTE: this number later was amended to 3] or fewer applicants or candidates are competing for the executive position, ‘finalist’ means all applicants or candidates.” This specific law, alone, delivered a crushing blow to the Regents’ position.
4. What does the decision mean?
The Judge detailed what the import of the Regents’ action was, to wit: “Not only was the public deprived of the opportunity to compare Mr. Kennedy to his competitors, but just as importantly, the public could not evaluate the Board’s performance in selecting Mr. Kennedy as the only finalist when information regarding his competition was kept secret. The members of the Board, of course, are elected by the citizens of this State, who should be able to assess Board decisions, particularly one as critical as selecting a President of the State’s flagship university.”
Clearly, the Judge was making a statement about the quality of the Board’s decision-making and was reminding voters that their decisions in selecting Regents have important consequences.
5. Why Transparency benefits everyone — including the Regents.
No one can deny that the loss of credibility which occurred due to how the Board of Regents conducted its presidential search was based on how the Regents tried to hide it from the public.
The result of the Board’s lack of transparency was a statewide black eye. Given the negative reaction by faculty, students, staff, alumni, and hundreds of thousands of Colorado citizens, the Board should be able to now see it could have avoided the public relations disaster simply by following the law. Everyone would have come out ahead had the Board been transparent.
The CU Board of Regents faces a special challenge of which most Colorado citizens are unaware — i.e., unlike any other institution, it is a sovereign entity in Colorado based on how it was created by the Colorado Constitution. Similar to Native American tribes identified as sovereign nations by Federal law, Colorado law gives CU the ability to autonomously make decisions, often without regard to the positions or rules of other entities.
Sovereignty represents a grant of extraordinary independence and power. Unbeknownst to most Coloradans, CU actually can make its own laws (called “Regent Law”). But having this authority can be corrupting and the Regents need to make certain they don’t become arrogant or abuse their singular authority.
What happened in 2019 illustrates how transparency promotes good government and helps our leaders avoid bad decisions. The incomplete and untimely vetting which occurred was due to the Regents’ avoidance of their disclosure responsibilities. It rebounded to hurt them and the University.
A more transparent process ultimately may have resulted in the same hiring decision but, at the minimum, that decision would have been made with everyone being fully informed in a timely manner. That would have helped create the invaluable “buy in” every academic institution needs.
Hopefully, the Regents have learned from this experience and will make a formal commitment to greater transparency in the future.
6. How should CU and its governing Board of Regents respond?
First, the Board should decline the opportunity to appeal the decision. All an appeal is likely to do is expand the scope and finality of the Judge’s decision while wasting legal fees and doing further damage to CU’s reputation.
It is too easy for government entities to use funds that come from the pockets of other people (usually just taxpayers but, in this case, primarily students and parents) to engage in senseless litigation. The Regents should save everyone’s money and avoid the temptation of filing an appeal. But if there are Regents who want to appeal, they should spend their own money doing it by making a contribution to the University to cover all the costs of an appeal and the resulting decision.
Second, and most importantly, the Board needs to reflect on the example it sets for its students, faculty, staff, and alumni, as well as for the many other citizens of the State of Colorado. Using “linguistic gymnastics,” avoiding the accepted definition of simple words, making promises (i.e., to candidates about confidentiality of their applications) which cannot be kept, and spending other people’s money for expensive and nonsensical litigation is not what a great institution such as CU truly should stand for.
Third, the Board should embrace the principles of transparency, not only because this is the right thing to do, however uncomfortable it may be at times, but also because it ultimately will promote good decision-making and increase the public’s confidence and trust in our otherwise extraordinary flagship institution of Higher Education.
7. What should CU do next and what can the Regents do to increase transparency?
The Board can begin immediately to change its course from one of avoiding transparency to one of setting a high standard for it and being the State’s leader in ensuring Coloradans are fully informed. Here are some immediate actions the Board can take.
– As a courtesy, advise the candidates whose names and applications are to be released that this is forthcoming and apologize to them for any promises made that the information always would remain confidential.
– Publicly release the information required under CORA, as ordered by the Court.
– Institute changes in the recruiting process so all future candidates will be advised, in advance, that, if they become finalists (which could include a large number of people), their applications would be publicly disclosed accordingly (i.e., certain personal information still can be withheld from the Public under CORA, such as medical conditions)
– Institute a plan to better and more proactively inform the Public when and where the Board meets, and include more detailed agendas.
– Make a greater effort to minimize Executive Sessions which shut out the public.
– To the greatest degree possible, disclose what occurred in each Executive Session when one truly needs to be held
– Institute a policy that all future Board meetings would be live-streamed so any member of the public could watch or listen for free. Given today’s technological offerings, meetings can be broadcast via a number of platforms — all at little or no cost to the University.
– Archive meeting recordings so they are available to the Public 24/7.
– Institute a policy that all future Board meetings will be held at locations which are convenient for members of the University community and the Public (for example, a recent annual retreat was held at a location which was inconvenient for almost everyone in the entire State).
– Proactively post decisions of the Board and seek input on them via a confidential “Regents’ Suggestion Box” which would channel specific requests to the appropriate administrative staff member. This would give Regents a window on peoples’ concerns while not interfering with established communication paths.
– Make a greater effort to go out in the community — with a periodic 64-County statewide “Listening Tour” tour — to hear what Colorado citizens have to say on any topic about which they desire to opine.
The good news is Board of Regents and CU have an opportunity to become leaders in transparency. Let’s hope they start today by declining to appeal the decision by Judge Jones.
Aaron Harber is the host of “The Aaron Harber Show,” (www.HarberTV.com/Info). Email Aaron@HarberTV.com. © Copyright 2020 by Aaron Harber and USA Talk Network, Inc. All rights reserved.© Copyright 2020 Aaron Harber and USA Talk Network, Inc. All rights reserved.
THE FIGHT FOR OPEN GOVERNMENT (December 12, 2019)
A major battle plays out daily in Colorado as some of our elected and appointed officials — all of whom took a solemn oath to serve all Coloradans — do everything possible to frustrate disclosing information belonging to the public. These fights involve access to records concerning public policies created with taxpayer dollars.
As someone who has fought on multiple fronts for public access to records and deliberations, I continue to be astonished by how many government employees continue to make it difficult for journalists to do their jobs or for regular citizens to simply find out what is happening in their own communities.
While many officials tout their belief in “transparency,” their actions often belie their words. They hide and obfuscate — making decisions privately rather than publicly and making records difficult to obtain by delaying access, charging ludicrous amounts for copies, overly redacting information, and, in many cases, not providing the information at all.
They truly believe whatever they do is “right,” because they are convinced they know best what is in the public’s interest. They rationalize bad behavior due to their belief the ends (what they believe is a good outcome) justify the means (making it difficult for journalists and others to access what should be public information).
The current public records debate in Colorado is focused on how long government officials at all levels should retain their electronic records — primarily email correspondence and text messages. Current law generally allows each agency and political subdivision to set its own time period for when emails can be deleted. As a result, some officials are deleting their correspondence after just 30 days! This makes no sense at all and contributes only to greater distrust of government.
In the past, one could argue the cost of storing voluminous amounts of information was exorbitant and deletion of certain records made sense. As someone who worked in and is knowledgeable about the high technology arena, I can state, without any qualification, that the cost of electronic storage today is so low, an argument could be made that no deletions should ever occur.
In 1980, a gigabyte of computer storage on a hard drive could cost $1 million. Today that cost is 2 cents. The entire contents of the Library of Congress could now be stored on a device which costs only $500.
Bureaucrats who argue storing all emails indefinitely would make responding to Open Records Act requests difficult are being disingenuous, at best. Today’s search tools allow a user to easily and quickly search and find whatever records are relevant to a request — often in a matter of seconds. Technology simply has rendered the excuses of uncooperative bureaucrats moot.
One reason to require all Colorado government agencies to maintain email and text correspondence and related records for at least five years is because it may take a few years before anyone even knows they need the information. A journalist or law enforcement investigation into activities or actions involving government agencies, especially where malfeasance is a possibility, may take several years to develop.
When legal processes are involved, it can be one to three years after an event before actual litigation commences and then another year or two before the discovery process (i.e., record acquisition) is completed. That means five years could go by before a case is complete. And if there are delays in responding by a government entity, the time periods can be much longer.
Another way some government agencies make it difficult for journalists and others to get information is by charging excessive amounts to honor what often are simple requests.
Agencies are allowed to charge (e.g., $30 per hour) for the time their staff members spend responding to requests, some of which legitimately do require extensive research and the organization of information.
However, there have been instances where agencies have claimed a request will take days or even weeks to process. These agencies then calculate the cost of the request and inform the requesting party that thousands of dollars are needed for a search which actually could be completed in an hour or two.
Certainly, the time estimates can be reasonable when documents need to be gathered from disparate sources and have to be reviewed and redacted or even excluded for legitimate reasons (such as confidentiality) but some agencies abuse the process to cover up their own mistakes.
Government agencies also may try to provide requested information in a form or format which is less helpful and, at times, even unusable. In my first Open Records case (I was represented at the time by future Colorado Attorney General and U.S. Senator, Ken Salazar), I requested records from a state government office in electronic form.
The office agreed the information I requested was public but wanted to provide the information on paper. This would result in the printing of tens of thousands of pages of information which would be next to impossible to organize or analyze. It also would be an environmental disaster. Although I eventually won the case, by the time I got the data, it no longer was helpful.
Fortunately, the Colorado Open Records Act was amended in 2017 so government agencies now are required to provide requested information in the most convenient and least expensive form for both the government agency and the requesting party. In the case I just cited, it was obvious providing the requested records in electronic form was the easiest path for the agency and was the most useful to the requesting party.
In a matter involving Open Meetings under the Colorado Sunshine Law, I informed a municipality it was against Colorado law for its governing board to meet in sessions about which citizens were given very limited notice and during which decisions were made but were not truly in public view or even in view of the Press covering the municipality.
Only because I involved legal counsel did the municipality ultimately agreed to institute some reforms. Nevertheless, during the entire duration of the matter, it believed what it was doing was appropriate even though few knew the people’s business was being conducted behind the equivalent of partially closed doors.
Today, Coloradans who hire an attorney to assist them cannot recover those costs unless they prevail in court. The law should be modified so those costs are recoverable even if the issue does not even go to court. That would create an incentive for government agencies to be more cooperative.
This is important because, in some cases, government agencies use the length and cost of the process to stall providing the requested information. In these instances, the officials know they ultimately are likely to have to provide the information but, by forcing the requesting party to go through the legal process, they are confident the information will be useless by the time it is provided.
In the first case in which I was forced to be a party after making an Open Records request, the government entity involved went to court to fight the request knowing it would lose but also knowing the delay caused by the legal process would result in my getting the requested information too late to be used effectively. So, although I won the case, the agency accomplished its goal of “running out the clock” (as well as costing me money).
To address these issues, there should be an Ombudsman who can quickly size up situations and mediate a final arrangements on the parties in a short time frame (e.g., within three business days of a request). Today, it takes the agreement of all the parties for mediation to occur. If the dispute was submitted to an Ombudsman and then goes to court, the Ombudsman’s report should be available to the judge in the case so as to expedite a decision. Both the Ombudsman and court processes should be fast-tracked in the law so a decision is issued within a calendar week of a request.
While Coloradans’ interests in Open Government are led by organizations such as the Colorado Freedom of Information Coalition (ColoradoFOIC.org), it is up to Governor Jared Polis and the Colorado General Assembly to make our state’s commitment to Open Records and Open Meetings a full-fledged reality.
Most importantly, it is time we make certain we elect public officials who not only say they believe in transparency but have plans to proactively make information accessible. If we do that, we will have fewer barriers being erected to having access to public records and meetings. Hopefully our elected leaders — whose members are subject to Open Records and Open Meetings Sunshine laws — will do the right thing and make these laws work the way they were originally intended.
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