The University of Colorado Board of Regents the governing board of directors for the entire system, constituted by 75,000 students and 37,000 employees just overwhelmingly lost a Colorado Open Records Act lawsuit in which The Daily Camera sought to force the university to disclose the six candidates who actually were finalists in last year’s search for a new president.
Denver District Court Judge Bruce Jones 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 went on to say: "The term ‘finalist’ means an applicant ‘who is a member of the final group of applicants or candidates.’"
The judge stated: "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 predetermined outcome, rather than to align with the statutes."
The judge 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" in its response to the lawsuit.
The judge concluded: "Not only was the public deprived of the opportunity to compare Mr. Kennedy [Mark Kennedy, who was selected by the board as president] 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."
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 of now-President Kennedy, but 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.
Today, the board should save everyone’s time and money by not appealing the decision. It should reflect on the example it sets for its students, faculty, staff and alumni with the objective of being more cognizant of how it is viewed by its many constituencies.
In addition, the board should embrace the principles of transparency, not only because it 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.
Specifically, here are actions it should take:
After notifying all the candidates, publicly release the information ordered by the court.
Institute changes in the recruiting process so future candidates are advised that if they become finalists, their applications will become public.
Institute a plan to more proactively inform the public when and where the board meets and include more detailed agendas.
Minimize executive sessions which shut out the public.
To the greatest degree possible, disclose what occurred in executive sessions.
Live stream all board meetings so everyone could watch them and archive meeting recordings for 24/7 public access.
Hold all board meetings at locations which are convenient to attend 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 that would channel specific requests to the appropriate administrative staff members. This would give regents a direct window on peoples’ concerns.
Make a greater effort to go out in the community with a periodic 64-county statewide listening tour to hear what Colorado citizens have to say.
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 judge’s decision.
Aaron Harber is the host of "The Aaron Harber Show." (HarberTV.com/Info) Email him at Aaron@HarberTV.com.