by Max Brantley
Arkansas is a close-knit state. As the national press learned during the Clinton years, everybody knows everybody, if they are not a cousin or business partner.
So it goes with the University of Arkansas, the state's premier education institution and, at its core, a highly political entity. What goes on there doesn't stay secret long.
Two days after the Democrat-Gazette reported March 26 that UA Trustee John Ed Anthony had talked with four unnamed potential applicants for the position of system president to succeed the retiring B. Alan Sugg as system president, I was able to pass along a couple of in-state names and news of a movement on the board in support of former trustee Stanley Reed, stoutly opposed by another group of trustees.
That led to a further tip. Did I know that Anthony, whose term expired and is no longer leading the presidency search, had arranged a series of one-on-one meetings with other trustees during the UA trip to the Sugar Bowl in January to discuss candidates for president? Did I know there were e-mails memorializing that and other discussions with trustees about the search? Did I know that those e-mails might reveal potential candidates?
I did not. But I asked for the e-mail record. The state Supreme Court has ruled that even e-mail sent on private accounts about public business is open under the Freedom of Information Act. The UA Friday provided a sheaf of e-mails Anthony had written other trustees since last fall on the search and the handful of responses he'd received.
It's an interesting window on a secretive process and reveals the name of one highly sought candidate, the chancellor of the University of Missouri, who ultimately decided not to seek the job. Read the e-mails here. The UA and a press lawyer take a differing view of whether the one-on-one private trustee meetings are legal under the state Freedom of Information Act.
Those Sugar Bowl one-on-one trustee sessions? From a Jan. 2 email from Anthony to other trustees:
I plan to arrive in New Orleans on Monday afternoon and will be at the Riverside Hilton. I'd very much like to meet for a few minutes with each trustee in attendance to bring you up to date on developments in our search and to get your views on what I've learned and will share with you individually.
He confirmed to me that he'd met with trustees then as planned. The press was not notified of these meetings.
At this juncture, what many in higher education think good personnel practice bumps up against public accountability and, maybe, the law.
The UA has used a private search firm paid with private dollars (though UA Foundation money is effectively controlled by the university) to identify potential applicants. But these candidates, though several have visited Little Rock and Fayetteville and met with various trustees and school officials, have not actually applied. Applications would be open to public inspection and several people sent unsolicited applications that were released. The sought-after candidates prefer to be kept secret unless they expect to be hired. Anthony was the point man. He talked with the search firm. When he found promising people, campus visits were arranged and round-robin talks were held. Trustees were invited singly or in pairs to meet them.
Opinions differ on whether secrecy is a necessity to get good applicants or whether you do fine with an open process (as the UA used for Sugg's hiring and that of UAMS chancellor Dan Rahn, among others.)
But then there's the law. I always thought two members of a public board couldn't meet, even informally, on public business without public notice. Says the Arkansas Freedom of Information Handbook, prepared with legal guidance from the attorney general's office: "If two members meet informally to discuss past or pending business, that meeting may be subject to the FOIA. This question will turn on the facts of the case."
Let me quickly add that Anthony clearly believed he was following the law. In notifying two board members of a "top candidate" who'd be in Fayetteville March 5, he told Trustees Jim von Gremp and John Tyson, "I'm advised by [UA legal counsel] Fred [Harrison] that two trustees can meet together without violating FOI." He made frequent references to the cumbersome process dictated by the FOI ("the press is being very attentive," he wrote) and when certain information would have to be released under it. But he also made it clear he'd discuss "where we are in the search with any trustee who might like to call."
UA System spokesman Ben Beaumont, asked to explain their legal interpretation versus that in the FOI Handbook, responded: "... we relied on a 1976 Arkansas Supreme Court case that recognized that a meeting of two board members would not violate FOIA. In that case, the Supreme Court explained that FOIA would not apply to meetings for purposes of only obtaining information. Also, the attorney general recognized in a 2001 opinion that there is no hard rule that two members either do or do not make a meeting. Our position is that Mr. Anthony was given sound legal guidance and followed it."
John Tull, a lawyer who represents the Arkansas Press Association, disagrees. "In my opinion that is a violation of the law. Where you have a consistent pattern of one board member meeting with another board member, which leads to a vote or a lack of open discussion in a public meeting, I think it is a violation." Tull said he respected UA legal counsel but he believed the cases they relied on dealt with accidental meetings of board members, not a process "contrived to get around the open meeting requirement."
So there's law. But there's a broader point. It's a high horse I've ridden for years, with the Little Rock School Board and others. Through e-mail, serial telephone calls and one-on-one meetings, public boards reach decisions in private that are then ratified in public as a mere formality. (But for bad weather, Anthony's e-mails indicate, he hoped the UA Board would have a decision on a president by March 18, before anyone in the public would have had an idea who the candidates were.) Legal or not, I think the public is owed more. But many people, not just the UA Board, think an open process reduces the quality of candidates by discouraging those who fear they might harm existing jobs with a public application. I still think that's a risk worth taking. David Belcher, the No. 2 man at UALR, did well there despite years of seeking jobs in other states before finally getting hired today at Western Carolina.
The e-mails, by the way, identified the candidate I'd been told earlier was well-received by several trustees. After multiple contacts, he canceled a scheduled return trip to Arkansas with his wife March 28 and withdrew from consideration, to the disappointment of several board members. He was Brady Deaton, chancellor of the University of Missouri in Columbia. He visited Arkansas earlier and delayed another trip on account of weather. His plans at one point depended on Missouri's continued play in the Big 12 basketball tournament. The UA didn't get the chancellor, but as you know, it did land one significantly higher-paid member of the Missouri staff, basketball coach Mike Anderson. The afternoon before he canceled his trip, Anthony wrote about Deaton: "Arrangements with other trustees developing well with positive input from all so far."
Dr. Carl Johnson of Little Rock is now chairman of the UA Board. He has taken charge of the search for president. He told me he favors a more open search, with applications, before a president is chosen.
Following are John Ed Anthony's thoughts on the process so far:
In a telephone interview, Anthony told me he was comfortable about the process of talking one-on-one with fellow trustees and confirmed they had held such meetings in New Orleans during the Sugar Bowl. All stayed at the same hotel.
He said he understand the applicants' desire for privacy. “It’s just the human nature of human beings not to want to be rejected, particularly level.”
He said it was possible that the process could have reached a consensus candidate unknown to the public until ratified at a Board of Trustees meeting. But he said that would have been a result of Board consensus, not his decision.
“My whole task was nothing more than to seek information and bring it back to the board. That’s all I did. It was not to decide who I thought who was best candidate.”
He acknowledged that the UA had filled some positions in an open process.
But, he said, “It shouldn’t be overlooked that the task of Alan Sugg and the UA president is radically different from many other positions held in the university system. The president’s job is administering a vast industry and the pool of people suitable for that is dramatically smaller than that for university chancellors and provosts and perhaps even medical school chancellors. People like to be where learning is and the excitement of young people around campus. There seem to be scores of those out there. Try to get someone into a system office, grinding out budgets and personnel issues from all the campuses and meeting with the legislative side. It just takes a different kind of person. And there aren’t many of them. And I can’t tell you how disappointed I was I couldn’t put it together and find a person willing to step up and seek the job in the time allowed.”
Anthony said, as a lover of the UA and Arkansas, he “couldn’t imagine anyone not wanting to be here.” But, he said, “it was a tougher task than I anticipated.”
He added, “I can’t emphasize again how difficult it is to get sitting presidents or sitting chancellors in major universities to be willing to expose themselves to scrutiny necessary to get this job.”
Anthony said he was “out of the loop” on the job search now. He acknowledged that one candidate, referring, though not by name, to the Missouri chancellor, had been a top prospect. He said there were other good candidates and he confirmed, as I’ve reported, that they included former members of the Board of Trustees.
That none had applied by the end of Anthony’s tenure, does not mean that one or another might not yet emerge as an applicant for the job. The question is whether the process will conclude with an application from a single candidate who expects the job will be offered on application or multiple public applications for board consideration.