LARAMIE — Cloaked in a veil of secrecy that the University of Wyoming Board of Trustees shows no signs of lifting, the decision to demote President Laurie Nichols has driven frustration and rumors on campus and around the state.
But the Nichols decision was just the latest in a string of decisions, many of significant public interest, that the board of trustees has made behind closed doors.
Trustees are appointed to public service by the governor and are subject to Wyoming’s public meeting laws. But through the broad use of executive sessions — a provision that allows boards to meet in secret under certain clearly defined circumstances — the current trustees have frequently shut the public out of decision making, obscured their reasoning and debate, and left the students, faculty and staff they govern in the dark about how and why decisions were made.
Beyond damaging morale on campus, the board is at the very least pushing the limits of the state’s public meeting laws, according to Cheyenne-based attorney Bruce Moats, an expert in Wyoming public meetings and records laws. In an interview with the Laramie Boomerang and WyoFile, Moats reviewed incidents where the board made liberal use of executive sessions.
In essence, the board is choosing “not to interpret this act liberally and in favor of openness,” Moats said. Nowhere does the law require the use of executive sessions, Moats noted. When they meet in private, they do so by choice.
A handbook provided by the governor to board appointees across state government warns them against heavy handed use of the privilege. “The ability to attend public meetings is a basic tenet and right of Wyoming citizens, so tread lightly when deciding to go into executive session,” the handbook says. It was last updated under Gov. Matt Mead in 2012.
But from decisions about refunding a donation to Casper businessman Tony Cercy after his high profile sexual assault case, to discussions about restructuring UW’s popular Biodiversity Institute, the Board of Trustees has invoked executive session.
No decision is more emblematic of the board’s lack of public disclosure than Nichols’ demotion.
The campus community and the state at large were stunned by a March 25 UW press release stating she would become faculty when her contract was up.
The Casper Star-Tribune later reported that 10 days before that announcement four leading trustees flew to Arizona, where Nichols was vacationing.
Two days before that flight, on March 13, the trustees met in the second of two executive sessions via conference call.
A meeting notice required by law said only that they had met “for the purpose of Personnel.” After the March 13 executive session, the trustees took a vote.
Wyoming law requires votes to be made and actions to be taken in a public session. The board of trustees’ own bylaws also say meeting minutes should note what happened.
But the minutes from the March 13 meeting record only the following:
“Trustee Brown moved that the Board Officers and General Counsel proceed as discussed in Executive Session; Trustee Scarlett seconded the motion which passed with a majority vote at 1:38 p.m.” Trustee Macey Moore was absent. The minutes do not note a request for a roll call vote. Only one trustee’s vote is recorded, that of Trustee Dr. David Fall of Gillette who voted against the motion.
Typically, when the trustees invite other individuals to attend executive sessions, the minutes list those people by name. In the case of the March 11 and March 13 meetings, they hid one individual’s identity, with the minutes stating simply that they admitted “a third party” to the executive sessions.
The timing suggests that this was the decision to remove Nichols. On its face, however, the meeting minutes don’t tell the public which trustee voted for or against what decision. In determining the fate of the university president — which several former trustees called the most important decision the board can make — the minutes obscure the current trustees’ votes.
The Wyoming Public Meetings Act affords 11 reasons for which a governing body is permitted to “hold executive sessions not open to the public.” Permitted reasons in the law are highly specific and actions of the board must be taken in public.
The University of Wyoming Board of Trustees’ regular reliance on executive session and the resulting lack of transparency is a pattern for the board that stretches back at least several months, according to a review by WyoFile and the Boomerang. But some familiar with UW say a lack of public input has been a hallmark of the board of trustees for much longer.
“What I detected from faculty was they really feel left out of the loop,” said Jim Rose, who served as an ex-officio member of the board in his role as executive director of the Wyoming Community College Commission. Rose ceased to serve in both roles in June 2018, he said.
University faculty are “for the great majority interested in the welfare of the institution and its students,” Rose said. “I think they rightly feel they’re being left out to the detriment of the institution and what they have to do.”
The Laramie Boomerang and WyoFile provided the University of Wyoming’s communications office with a list of times executive session was used under dubious reasoning, or where meeting minutes hid the nature of votes taken after executive session and other incidents that appeared out of compliance with open meeting laws.
The university responded by declaring the board had operated within public meeting law in each case. In an interview, Board of Trustees President David True said his group follows university lawyers’ advice on executive session and rebuffed the suggestion that executive sessions were overused.
“I truthfully believe that the board has appropriately utilized executive sessions,” True said. The board does not intend to be secretive, True said, but uses executive sessions when it sees them as necessary. “That’s the way it is and we abide by what we believe are the law and rules,” he said.
But meeting notices, agendas and minutes, along with a Laramie Boomerang reporter’s notes, outline a number of questionable invocations of executive session.
Trustees frequently make vague motions that obscure the record of what action has been proposed and voted upon — as in the case of the March 13 vote that may have been for Nichols ouster.
“We don’t know what the hell they’re voting on. And that’s troubling that we don’t even have a general gist of that,” outgoing Faculty Senate Chairman Donal O’Toole said. “It’s a pattern.”
The board’s minutes also obscure those actions.
On Feb. 20, Trustee Jeff Marsh moved “to allow the Office of Finance and Administration and Office of General Counsel to move forward as discussed in executive session,” according to minutes from that meeting. The motion passed with a unanimous decision.
In January, Trustee Michelle Sullivan “moved to approve the Honorary Degrees as discussed in executive session.” The Wyoming Public Meetings Law provides no justification for discussing honorary degrees in executive session, Moats said.
Tara Evans, UW’s general counsel, said in statements provided by UW spokesman Chad Baldwin that honorary degrees can be considered in executive session because discussion of the awards involves information that is “confidential by law.”
In choosing to award honorary degrees the board could review records containing “sociological data on individual persons” and “interagency or intraagency memoranda or letters which would not be available by law to a private party in litigation with the agency,” Evans said.
Under the Wyoming Public Records Act, a government agency can deny the public’s right to view such “intraagency memoranda” if disclosure would be “contrary to the public interest.” However, it does not require such confidentiality.
“There wasn’t any harm,” in a public discussion of honorary degrees, Moats said.
The recipients of the honorary degrees were subsequently named and honored publicly.
The board has also used executive session to discuss a number of leases, including one in March 2018 involving a contentious deal between university and the UW Foundation for management of the Marian Rochelle Gateway Center. The board eventually passed the lease agreement on a 5-4 roll call vote, though the motion provided almost no details of what the lease entails.
The state’s public meetings law does not indicate that leases are allowed to be discussed in executive session and only states that a board can go behind closed doors on real estate matters when considering “the selection of a site or the purchase of real estate when the publicity regarding the consideration would cause a likelihood of an increase in price.”
Evans argues that leases are allowed to be discussed in executive session because they involve legal advice, which she said falls under the Wyoming Public Meetings Law’s carveout for “information confidential by law.”
However, in asserting that legal advice is “confidential by law,” Evans cited a section of Wyoming’s Code of Civil Procedure that states an attorney shall not testify in a legal case about communications made between that attorney and the client.
In December, Trustee Dave Bostrom also “moved that the University of Wyoming Board of Trustees approve the litigation recommendation made by General Counsel during Executive Session.” The next day, lawyers filed to settle the high profile lawsuit accusing UW Foundation president Ben Blalock of a retaliatory firing and discriminatory practices.
Not only do these vague motions seem to defy the legal requirement that actions be public, they also appear to run afoul of the trustees’ own bylaws, which indicate that the minutes of their meetings should be clear enough so that readers can understand the action being taken.
“Action of the Trustees which utilizes material presented by reports or other documents shall be presented in the minutes in such form as to include, when not impractical, the full text of the action so that reference to other reports and documents is not necessary in order to determine the exact meaning of the action taken,” the board’s bylaws state.
Moats said the lack of clarity runs counter to the entire purpose of minutes — and the reason all actions are required to be taken in public.
“The minutes are there to record what happened for history,” he said.
Evans said vague motions are necessary to protect the proceedings of executive session.
“Minutes or proceedings of executive sessions are confidential by law,” Evans wrote. “While this requirement can make for vague motions, it is unavoidable in certain circumstances; the university cannot disclose that which is confidential in the first place. This confidentiality extends to any associated materials (for example, an appraiser’s report or a settlement agreement).”
“Associated materials” refers to records not considered public under the Wyoming Public Records Act, Evans said.
But Moats disagreed. “There’s nothing legally preventing them from giving a (clear) motion,” he said. “What harm would that do to name the business in the interest of the public?” Moats also said the board, like other Wyoming governing bodies, puts too much stock in the protections executive session offers.
“It’s not the discussion that gets them sued; it’s the decision that gets them sued,” he said.
Just as some motions have dubious legality, so too do the executive sessions that precede them.
Trustees, like many public officials in Wyoming, have erroneously suggested that all discussions regarding “personnel” need to be kept confidential. Ironically, the word “personnel” does not appear among any of the 288 words included in the 11 reasons that boards are allowed to use executive session.
The only personnel discussions that are allowed to be held behind closed doors are those that involve “accepting or tendering offers concerning wages, salaries, benefits and terms of employment during all negotiations” or consideration of “the appointment, employment, right to practice or dismissal of a public officer, professional person or employee, or to hear complaints or charges brought against an employee, professional person or officer.”
On the day the Nichols decision was announced, True told the Laramie Boomerang that the board had not yet discussed the process trustees would use to hire the next president. True said the board would likely discuss that in an executive session the same week.
Evans conceded that the search process for the university’s next president is not an allowable use of an executive session. She said all discussion surrounding the search process would happen in public.
And yet, the trustees have already announced three significant decisions about their search process: That they plan to appoint an acting president once Nichols’s contract expires, that the process will be conducted in a “transparent” manner and that the search process won’t commence until Nichols leaves office. None of the discussions that led to those decisions occurred in a public session.
Evans said those statements were “based on consistent sentiment expressed by other trustees,” not decisions made in secret.
True is committed to leading the board in a transparent process as the search for Nichols’ replacement gets underway, he said. “As far as I am concerned when it comes to searching for, and finalizing the process for, a permanent president it’s going to be very open and inclusive,” he said.
The trustees have consistently used “personnel” as a broad reason to shield their discussions.
At a September meeting, Trustee Laura Schmid-Pizzato asked Ed Synakowski, UW’s vice president for research and economic development, how many positions were expected to be cut as part of the planned closure of the Biodiversity Institute.
Trustee John McKinley instructed Synakowski not to answer, saying that the “personnel matter” would be discussed later in the week as part of executive session. His instruction came despite the fact that Schmid-Pizzato was not inquiring about “the right to practice or dismissal” of any specific employee.
Former Trustee Mike Massie told the Boomerang he feels that “unless they’re talking about specific individuals in the Biodiversity Institute, talking about a reduction in force to me that is … debatable whether or not that’s an executive session topic.”
“You don’t want to scare (faculty) but at the same time making a decision on a reduction of force is very much a public decision and at some point that’s got to be debated in public,” Massie said.
By Daniel Bendtsen, Laramie Boomerang, and Andrew Graham, WyoFile.com
Via Wyoming News Exchange