'Wrong on the law': Experts say UA presidential search confidentiality contrary to public interest, damaging to democracy
UA Presidential Search Advisory Committee Chair Bill Ridenour speaks to fellow committee members at the first meeting on Thursday, Oct. 13, 2016. The committee spoke about the importance of confidentiality from the search's onset.
The search for the University of Arizona’s next president appears to be winding down, but the Arizona Board of Regents and their specially appointed UA Presidential Search Committee have yet to tell the public anything about the now less-than-20 remaining prospects in the search.
This reality isn’t for a lack of trying—the Daily Wildcat has repeatedly requested the names, resumes and relevant information regarding candidates in the search, only to repeatedly be told no.
As the search draws to a close and the committee proceeds with what they call “discussions” with “prospects” in the search, the legality of their secrecy is under question.
“Obviously, I think that [the regents are] completely wrong on the law,” said Derek Bambauer, a UA law professor. “The [Arizona] Supreme Court set out the rules for what constitutes a prospect, candidate and finalist, and it’s not up to [the regents] to unilaterally redefine that.”
The ruling Bambauer refers to is a 1991 Arizona Supreme Court case regarding the secrecy of a 1989 search for a new Arizona State University president.
By the books: Board of Regents v. Phoenix Newspapers
As in the UA’s search, the search firm ASU hired recommended names of candidates be kept confidential. Due to the suggestion, the board of regents refused to release the names of candidates.
Regardless, the Arizona Republic and the Mesa Tribune published the names of 17 candidates after an investigation. The board of regents sued the newspapers, arguing that fewer people would apply for the position if their names were made public.
In their ruling, the justices determined that once prospects seriously consider the position and are interviewed they become candidates. This is important because this ruling created terms for the regents to use when conducting a presidential search.
In Arizona, the public has a legal right to know the name of anyone considered a candidate for the presidency of a public university.
The court also said the regents should create rules of procedure for the search process for future reference so it would be clear when a prospect becomes
According to Sarah Harper, vice president of communications for the board of regents, such rules were never established and guidelines are created with each presidential search.
RELATED: Rise of the executive headhunters
The guidelines for this search do not clearly specify when a prospect becomes a candidate or even use the court ruling to define the difference between the two categories.
The Arizona Supreme Court ruled in ‘91 that the public had a justifiable interest in these candidates which was more important than concerns about confidentiality.
According to Dan Barr, the attorney who represented the newspapers during the ‘91 Arizona Supreme Court case, the ruling still applies today.
“[In] any search for any public official, once the public body interviews these people, and they have this mutual exchange of interest, at that point their resumes become public,” Barr said.
Barr wasn’t able to comment beyond his participation in the ‘91 case because he represents the UA in an unrelated matter.
Bill Ridenour, chair of the search committee denied that the applicants remaining in the search were candidates and instead suggested they were still prospects.
“They’re prospects all through the process until their names are forwarded to the board of regents and they determine that they want to be a candidate for the position of president,” Ridenour said.
A war of words
The ambiguity and confusion in the regent’s search guidelines has been caused by an unclear distinction between prospects.
For example, the board held “discussions” with “prospects” earlier this month, yet refused to call them interviews.
“Let me clarify,” said Vianney Careaga, student regent on the search committee. “Interviews would imply that we have candidates. We don’t have candidates yet; we have prospects.”
The committee’s guidelines call those whose names have been forwarded to the board of regents “potential candidates” and only calls them “candidates” after they have been interviewed by the regents. Yet, in the Arizona Supreme Court ruling, the 17 candidates were interviewed by the search committee, not
The guidelines created by the regents were carefully worded so that applicants will remain confidential until the end of the process, when the regents choose a new president. By rewording the terms “prospects” and “candidates,” the search committee will only be required to release the names of those applicants who have been interviewed by the regents.
“As much as we would all like to make up our own rules, we still have to follow state law,” said David Cuillier, director of the UA School of Journalism and an expert on the Freedom of Information Act, the law that backs up public records law. “Otherwise, I would come up with my own procedures for driving on I-10. Turns out, I imagine, that state troopers would not accept my own procedures and give me a ticket.”
Some have raised concerns that this is not only bad for public interest, but also contrary to state law.
“If they’re only going to send three names to the board, then that’s not particularly helpful,” Bambauer said. “I would say their refusal to release the names, in my judgement, runs counter to the binding precedent of the Arizona Supreme Court.”
A stifling air of secrecy
Confidentiality is nothing new for university presidential searches and is becoming increasingly common across the country.
Proponents of confidential searches often refer to “removing the cream off the top” as a consequence of open and transparent searches. They argue that, if the names of candidates get out, and they don’t get the job, it could hurt their reputation or lead to repercussions at their current institution, causing candidates to lose interest.
“Public searches are not going to attract the best candidates,” Ridenour said.
Despite this assertion, there is no evidence to support the claim that universities won’t get quality candidates without confidentiality.
“We haven’t actually seen evidence of any of that,” said Judith Wilde, chief operating officer of the Schar School of Policy and Government at George Mason University, who has conducted research regarding university presidential search practices.
The potential ramifications of being denied these records goes beyond journalists’ ability to report the news.
“Access to government information for the public is fundamental to a representative democracy, which assumes people have the facts they need to adequately self-govern,” Cuillier said.
The public may never know what the pool of candidates looked like and, therefore, may never know if the UA community’s desires were taken into consideration.
“If you define the word ‘candidate’ too narrowly, you run the risk of the public only ever getting one name,” said Frank LoMonte, executive director of the Student Press Law Center. “You’ll have no idea if a diverse pool of candidates ever got considered.”
Greg Patterson, chair of the board of regents, is quoted in their latest press release saying the board is “conducting an open, inclusive and transparent search.”
Despite this statement, the board and search committee haven’t been willing to release any information about the candidates, even though standing state law puts this information squarely within the public purview.
This causes concern for experts and stakeholders alike, and may be seen as chipping away at some of the core values of our democracy.
“As citizens, we should be concerned about our government shutting us out,” Cuillier said. “Open government laws and practices are what makes us special in the world.”
Follow J.D. Molinary on Twitter.