Dimming the sunshine laws:

The influence and subjectivity of sunshine laws on university presidential searches

New research suggests that sunshine laws impact the presidential searches at both public and private universities, but there are ways to avoid their influence in Colorado. With a current presidential search happening at the University of Colorado Boulder, there are questions of how open this process will be.

 

All states have some variance of open records and open meetings laws, otherwise known as sunshine laws, that keep the public informed of certain government actions, such as the hiring of a public university president. In Colorado, public universities are required to publicly list the names of finalists for the position. However, some public universities are only publicly listing one name: the person who ultimately gets the job.

 

“I think it leaves the public wondering who else was considered, and why was that not a public process?” asked Jeff Roberts, the executive director of the Colorado Freedom of Information Coalition and a proponent of sunshine laws. “These are institutions that are run for the benefit of the public. They are funded by the public… and there’s a public right to know the process.”

 

Under the Colorado Open Records Act, a “finalist” is defined as a member of the final group of applicants who is made public. If only three or less candidates possess the minimum qualifications for the job, then those candidates are automatically considered finalists.

 

The term “minimum qualifications” is not defined by the sunshine laws, leaving interpretation open to university boards. Additionally, a candidate does not become a finalist until the university publicly announces that they are. Therefore, it is up to the university to decide who meets their minimum qualifications and who is a finalist.

 

According to Roberts, the public should expect at least three names of finalists to be announced by public universities, because these positions attract experienced candidates throughout the country. Roberts said that when public universities say they only have one finalist, it implies that there was only one person who met the minimum qualifications, “which is hard to believe”.

 

Announcing only one finalist, however, is fairly common among public universities in Colorado. Ken McConnellogue, the vice president for communication at the University of Colorado, said that the past three CU presidents have been sole finalists. Additionally, the University of Northern Colorado’s last president and the Colorado School of Mines’ last president were both sole finalists. An exception to this was Fort Lewis College, which named three finalists.

 

The reason why it may be more beneficial to name one finalist, rather than three or more, can be explained by a recent study published in the Journal of Labor Research earlier this month. This research suggests the more revealing sunshine laws are, the smaller the number and quality of applicants there are for public universities. The opposite is found for private universities, which do not have to follow sunshine laws, with an increase in the quality and number of applicants.

 

Larry Singell, Ph.D., is one of the authors of the study and is the executive dean and professor of economics at Indiana University Bloomington. According to Singell, although it is difficult to fully determine the influence of sunshine laws, a sunshine law overall “disadvantages public research [universities] relative to private.”

 

This advantage likely exists because private universities can offer more confidentiality to candidates who do not want their current employer to know they are applying elsewhere. One example is the current chancellor for the University of Denver, Rebecca Chopp, Ph.D. Chopp was a sitting president at Swarthmore College while applying for the DU position in 2014.

 

“We would not have been able to attract and keep Rebecca Chopp in the process… had we not run the process the way we did it,” said Douglas G. Scrivner, the chair of the search committee and chair emeritus of the Board of Trustees at DU.

 

The chancellor search at DU in 2014 was more confidential than usual, said Scrivner. At its largest, the applicant pool was around 100 people, including multiple sitting presidents. DU typically brings the final two to four candidates to campus for public engagement. However, because some candidates were unwilling to participate in the public process, the three finalists were instead brought near campus and interacted with 50 to 60 students, faculty and staff who had all signed non-disclosure agreements beforehand.

 

“It was important for the DU community that they had an opportunity to help shape the search for the process of finding a new leader,” said Scrivner. “We worked hard to get input into the process from beyond the search committee, but [it was] a much more contained process than would typically be the case.”

 

This level of confidentiality would not be expected at a Colorado public university, which is subjected to sunshine laws. Expecting at least 50 applications for the position, Ken McConnellogue does not think sunshine laws will have much influence over the University of Colorado’s current presidential search, since public universities only have to reveal the names of finalists. Even then, candidates still have a say in how much information is revealed.

 

“We are not going to make someone public without their knowledge or permission,” said Patrick O’Rourke, the vice president, university counsel and secretary of the Board of Regents for CU.

 

According to O’Rourke, if a candidate does not want their name announced as a finalist, then they may have to be reevaluated.

 

In regards to the minimum qualifications that CU will be assessing candidates by to determine if they are a finalist or not, O’Rourke said the Board of Regents will work with the search firm they hire to develop qualifications, both preferred and mandatory, before providing a charge to the appointed search committee. This, however, will take time, since applications to the search committee will not close until October 8.

 

According to Larry Singell, despite difficulty in assessing how influential sunshine laws are, “it definitely has an impact”. The benefit to avoiding this impact by naming sole finalists is that it allows public universities to attract a larger, more qualified applicant pool for their presidential positions. However, doing so also leaves the public and the press in the dark.

 

Singell said the “public needs to think about” both sides and the balance they ultimately want. For some, there is no need for reevaluation.

 

“I think sunshine laws are a good thing,” said McConnellogue. “I think they balance the need for confidentiality for candidates and also the public's right to know of the process.”