During and in the aftermath of the Heather Manchin BreschÂ scandal, West Virginia University’s Board of Governors had its share of problems complying with open government requirements.
First, when Mike Garrison was resigning, the WVU board tried to hide the details of his departure agreement from the public and the media, as Emily Corio from West Virginia Public Broadcasting reported at the time.
Next, the WVU board shrouded the hiring of interim university President Peter Magrath in similar secrecy,Â by voting on a motion to approve an agreement that no one from the public — including reporters covering the meeting — could see, again as Emily Corio explained:
As an audience member, it was unclear to me what the board was talking about and voting on, and this makes being a reporter difficult.Â How am I supposed to tell listeners what happened at this meeting if public officials use vague language, issue statements to some reporters and not others, and then refuse to give straight answers to reporters when asked?
More importantly, how can you, a member of the public be informed and engaged if you do not have access to this information?
Well, now the WVU board is poised to hire a permanent replacement for Magrath at a meeting on Friday. The board’s presidential search process has narrowed the choice to two finalists, Gregory H. Williams (left), president of City College of New York since 2001, and James P. Clements, provost at Towson University in Maryland.
But up until now, the entire process has been done behind closed doors, with no public scrutiny or accountability.Â Along the way, did the WVU board again violate the state’s Open Governmental Proceedings Act?
Well, consider that WVU board and search committee officials would not release the dates or locations of the interviews, saying that would break confidentiality rules set out by the state’s Higher Education Policy Commission.
Exactly what rules are they talking about? Well, the state Higher Education Policy Commission’s rules state:
Members of the governing board, or any search committee appointed, may not provide information about the names or backgrounds of any candidates, without their consent, to anyone who is not a member of the governing board or search committee, or authorized agents or staff as designated in the search procedures approved by the Commission. When candidates are invited to a preliminary interview with the search committee, they shall be notified of the conditions under which that confidentiality will may be waived as to background checks and that in the event that they are invited for a campus interview, and their names and backgrounds shall be publicly released at the time they accept an invitation for a formal campus visit.
OK — where in there does it say that they can avoid notifying the public about the search committee’sÂ meetings? Is the search committee covered by the open meetings act, and its requirement to post notices of meetings?
It’s obvious that the WVU board didn’t want to announce its meeting times and locations so that nosy members of the public (or the media) couldn’t camp out there and see who was going in to be interviewed. But is that legal?
Well, the purpose of the search committee was to interview candidates for the WVU job and then select or recommend finalists for the Board of governors to choose from.
Under W.Va. Code 6-9A-2, the term governing body includes “…the members of any public agency having the authority to make decisions for or recommendations to a public agency on the policy or administration …” And to be clear, public agency is defined as “…any administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power.”
And, as we’ve pointed out before (See Secret Meetings), state law also requires all governing bodies of the executive branch to file a notice of any meeting with the Secretary of State, for publication in the State Register, at least five days prior to any meeting.
Maybe the search committee wanted to be able to talk to and interview the candidates privately — and perhaps state law allows that (more on that in a later post) — but maybe the search committee should have posted notices of its meeting times and locations, called its meetings to order, and then followed the proper procedure for attempting to go into a closed-door executive session.