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Posted on Sun, Mar 7, 2010 : 6 a.m.

Lawsuit related to NCAA probe questions practice of closed-door meetings at University of Michigan

By Juliana Keeping

A monthly lunch attended by University of Michigan President Mary Sue Coleman and the Board of Regents is among several venues where top U-M officials talk business - out of the public eye.

Private meetings with the president, phone calls and committee meetings where no minutes are taken are among the ways regents discuss U-M matters, say university officials and the regents, the elected officials who ultimately wield control over the $5.2 billion a year operation.

How and when the regents meet has been scrutinized in recent weeks, following a Michigan Open Meetings Act lawsuit stemming from a National Collegiate Athletic Association probe into the school's football program.

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U-M President Mary Sue Coleman and football Coach Rich Rodriguez listened while Athletic Director David Brandon spoke during the Michigan NCAA media briefing on Feb. 23. 

Angela J. Cesere | AnnArbor.com

University spokesman Rick Fitzgerald said the lunches are legal, and all gatherings are consistent with the Michigan Open Meetings Act.

"The university's view on that is, the president having lunch with the regents is more of a social gathering," Fitzgerald said. "There's a specific exemption, where if even a quorum is present, it is one of those things that is exempt under the Open Meetings Act."

As required by law, the regents meet in a public session to vote on any matters.

The monthly public meetings are typically 45 minutes to two hours long, following a full day of private meetings. The public meetings typically don't include much discussion of votes - but have presentations on university projects and accomplishments, committee and executive reports and feedback from the public.

How the regents meet

The U-M regents, president and others regularly meet in private.

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University of Michigan President Mary Sue Coleman.

Prior to the public regents meeting each month, all board members gather at an "informal informational session" that's closed to the public. No decisions are made there.

The same day, regents who serve on one of two standing committees also hold private meetings. The committees - personnel, compensation and governance or finance, audit and investment - serve in an advisory capacity to the full board.

No minutes are taken at the informal sessions or committee meetings, according to officials and a response to a 2009 AnnArbor.com Freedom of Information Act Request for committee meeting minutes.

The full board, Coleman, Provost Teresa Sullivan and other top executives also break for lunch together that day, often at the university's Inglis House estate. They discuss university business, among other things, U-M regents confirmed.

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U-M Board of Regents Chairman Andrew Richner

"We do meet periodically with the president," said Regents Chairman Andrew Richner, who is also a partner with the Detroit law firm Clark Hill PLC.

Asked about the frequency of private meetings and who attends, he said: "I meet with the president as chairman. We meet frequently with the president to discuss university business."

Richner declined to add further details about the lunch sessions or other private meetings, referring questions to the U-M Office of General Counsel. Officials there reiterated through a spokesperson that the meetings are legal.

Regent Andrea Fischer Newman said the regents communicate in a variety of ways before the monthly formal meeting. She said the monthly lunches have taken place for years.

"There's no formal agenda. It's just lunch," she said. "What goes on in lunch? We eat. We chat. There are no decisions made. And if one or two regents talk about something, it would be no different than us talking on the phone to each other. I'm not aware of a legal problem with it. If there's a concern that us having lunch together is problematic, we should discuss it."

“Our ultimate goal is to try to what's best for the university,” she said. “We're very careful in these meetings not to make any decisions. And it's basically just an opportunity to hear information."

Other regents didn’t return calls or could not be immediately reached by AnnArbor.com. The state's voters elect the eight U-M regents for eight-year terms.

What the law says

The governing boards of Michigan's 15 public universities enjoy a measure of autonomy far above that of other governmental bodies, like the Ann Arbor City Council. Most public boards must hold all meetings with a quorum present in public.

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The Michigan Union on the University of Michigan campus.

Angela Cesere |
AnnArbor.com

The extra independence for universities stems from the Michigan Constitution that created them and two court rulings that favored universities in challenges to closed proceedings.

Regents are only required by law to vote during a "formal" session, and each board gets to decide what a formal meeting is. At U-M, it's the monthly board meeting.

Boards also decide what constitutes an informal meeting and whether those meetings are private or public.

Just over a decade ago, two court decisions cemented the rules for university governing board meetings.

In 1999, the Lansing State Journal and the Detroit News sued the Michigan State University Board of Trustees, alleging violations of the Open Meetings Act in a 1993 presidential search. The newspapers lost the case, and the Michigan Supreme Court ruling held presidential searches could remain private - in addition to other university business.

Oakland Sails, Oakland University's student newspaper, sued the OU Board of Trustees over the Open Meetings Act in 2005. The paper filed suit after the a majority of university trustees met in a closed session with the president and a lobbying firm to talk strategy leading up to anticipated funding cuts. The newspaper lost the case.

"The challenge extended the holding in the MSU case from presidential searches to all meetings," said Dawn Hertz, former general counsel to the Michigan Press Association.

"The short of it is, the Open Meetings Act doesn't mean anything to the boards," said Roderick Daane, who served on MSU's 1999 defense team and is now general counsel for Lake Superior State University.

How the governing boards choose to meet varies across the state’s public institutions.

At Eastern Michigan University, the Board of Regents and its five committee sessions are open to the public, and no other informal sessions are held. The eight regents, who are appointed by the governor, typically break for an optional private lunch that day.

“There is no business that takes place at that lunch, and no decisions are made,” EMU Regent Gary Hawks said. “We have lunch. It gives us a chance to get to know one another.”

Private conference calls might also take place, especially over matters like the university budget.

The NCAA lawsuit

The lawsuit filed Feb. 18 says a recent private U-M Regents meeting - allegedly called by the school's top officials to discuss a NCAA probe into the school's football program - was illegal.

The university disagrees and hasn’t confirmed the purpose of that meeting.

But the suit isn't just about the NCAA investigation - it's about shining light on government proceedings, said the U-M alumnus who filed it and his attorney.

In the lawsuit, Robert Davis alleges the U-M Board of Regents violated the Michigan Open Meetings Act and asks for minutes of the Feb. 3 meeting. He also wants the courts to clarify whether the meeting was permissible in the first place.

"His thought is that the details of this NCAA investigation - to the extent that the law says should be made public - should be, and ASAP," said Carl Marlinga, the former Macomb County prosecutor and U-M Law School alumnus who has joined Davis' legal team. "If they receive that information at what should be a public open meeting, there is an obligation to share that with the world immediately."

Davis, 30, is a former law clerk intern to a Michigan Supreme Court justice and is a Highland Park school board member. He said the notice of allegations announced by U-M officials outlining five alleged major NCAA violations doesn't change the course he's taken.

"The regents revealing the NCAA probe does not stop the intent behind the lawsuit - to have them to reveal the minutes of the meeting and to ensure that those type of meetings do not happen again," he said.

U-M Regents won’t comment on the NCAA investigation or Davis' lawsuit, but say they act with the public's best interests in mind.

"We believe in transparency and public accountability and we abide by the rules in how we've provided for in our governance structure," Richner said.

Davis said he respects the regents, but questioned why they need to hold so many private discussions.

"Considering the university is there for the public, I think openness is critical in terms of informing people of the decision making that takes place,” Davis said.

Juliana Keeping covers higher education for AnnArbor.com. Reach her at julianakeeping@annarbor.com or 734-623-2528. Follow Juliana Keeping on Twitter

Comments

Michigan Reader

Mon, Mar 8, 2010 : 9:18 p.m.

@trespass--I re-read the article, and it does say they meet for a full day, and break for lunch. It COULD still be characterized as a "social gathering". Though it looks a little "iffy." Guess the courts will work this out.

trespass

Mon, Mar 8, 2010 : 8:34 p.m.

Michigan Reader@ I think you missed some of the article. The Regents meet for essentially the whole day, including for lunch. Therefore, most of the day is about deliberating the business of the University and they only meet in public to take the votes. There is no discussion or dissent at the public meetings. Didn't you ever take a math quiz where the teacher made you show your work. You got partial credit even if you got the wrong answer but you showed you knew how to do the work. We need to see the work that goes into the decisions so that we can make informed decisions about whether to re-elect these folks.

Michigan Reader

Mon, Mar 8, 2010 : 7:34 p.m.

@MJSteklac--I disagree with your "take" on the factual basis (and your interpretation of the OMA). The law says, if they get together for the PURPOSE of deliberation or decision making...the primary purpose is to have lunch, a social get together,and it's only INCIDENTAL, or a secondary purpose, that they talk about U-M business, and they should be legal. I'm not an attorney, but common sense in reading a law and the attendant facts is not reserved for lawyers.

trespass

Mon, Mar 8, 2010 : 2:30 p.m.

blueprof@ Your comments may make some sense with most elected offices, where there is a campaign and issues are discussed. That is not the process for Regent elections. Regents must be nominated by their party, which occurs at the party convention. This leaves about 6 weeks before the election. Thus there is little if any campaign and the winner is usually the same as the party that wins the governors post. Thus, you have to look at the process by which the two main parties determine who their nominees will be for regent positions. Once the candidate for governor is decided, the party powerbrokers look around the room and see who is willing to pledge the most money to the governor's campaign. That is the regent nominee. I am told it costs about $50,0000 to get the nomination (unless you happen to be the governor's mistress).

blueprof

Mon, Mar 8, 2010 : 12:40 p.m.

In fact, waiting to election time (which comes far more frequently in this country than in most democracies) is PRECISELY the way representative is supposed to work. There are alternatives, like direct democracy, and we have some trappings of that with ballot initiatives, referenda, and recalls. California has the most direct democracy. Want their (governmental) problems? Representative democracy gives regents and other elected officials incentives to explain their votes to you (and gives their opponents incentives to point out flaws in their record and weaknesses in their explanation). And politicians routinely act on these incentives. (One of the biggest flaws with the Michigan situation is the existence of legislative term limits that short-circuit this democratic process and leave novice politicians at the mercy of experienced lobbyists.) So if you don't like the regents or their voters or their lack of explanations, vote them out of office. But that doesn't seem to be happening very regularly. So either you are not using the leverage you have or the majority disagrees with you. One of the preceding comments is right to say that the way the decision is reached does affect the decision itself. That's a great argument for NOT publicizing every second of information gathering, dealing making and deliberation. This is true for judicial processes and true for legislative and executive ones as well. People change their behavior for the cameras. And, yes, while this may deter some unsavory behavior, it also deters honesty, compromise, and creative discussions. It also encourages pandering and grand-standing. It's very easy to believe that these sorts of well-intentioned policies have only sunny effects, but the evidence simply indicates that isn't the case. This is something useful that UM students are learning in their classes.

trespass

Mon, Mar 8, 2010 : 8:46 a.m.

A couple of years ago, two regents got into a huge loud argument over proposition 2 (affirmative action) at one of these lunch meetings. As a voter in the next regents election, don't you want to know who defends and who opposes affirmative action and why? You will only see the University's official position. Do you think that all those black UM athletes would like to know what former regent and current athletic director Brandon's position is on affirmative action? Many black students have subjected to overt prejudice on campus. Don't they deserve to know the Regents' positions on affirmative action?

Orangecrush2000

Sun, Mar 7, 2010 : 10:10 p.m.

As the saying goes, you can't separate the grape from the vine. The manner in which a decision is arrived at, is connected to the decision, itself.

DennisP

Sun, Mar 7, 2010 : 9:17 p.m.

MJ Steklac is totally correct. As for the need to discuss matters in private, the OMAct provides sufficient and numerous exceptions to accommodate all such reasonable needs (e.g. pending litigation). This is not an issue for debate. The debate was had and resolved when the OMAct was passed by the Legislature and it was passed in favor of transparency and sunlight. The fact is that regents, trustees, etc all end up presenting a unified front to the public in support of positions of administration. The problem is that bona fide dissent from one or more regents is then stifled publicly. Such points may be of great value to the public. Further, it can reveal which regents or trustees are nothing more than rubber stamps and failing to uphold their duties. A perfect example was EMU's building of a mansion for the former EMU president. That was all unanimous and quiet, I'm sure until the excrement hit the fans. What was revealed was a board of yes men and women subservient to a self-aggrandized president. It took publicity to root that out. A more open system may have kept EMU from being saddled with a multi-million dollar boondoggle from the outset. The OMAct should apply as fully to all public colleges and universities as it does to all other public bodies. The Sup Court needs to rethink its positions. The argument that a constitutional creation of a few universities (not all are constitutional constructs) exempts any of them is wrong. The constitutional provisions only create the corporate entity and authorizes the regents or trustees to act as the corporate body (e.g to enter into contracts, purchase land, determine curricula, establish rules for tenure, etc). It does not formulate them as a special fourth branch of government, nor insulate them from the laws of the Legislature. There is no special "home rule" as with municipalities. This is clear in that all the universities have to adhere to all the other criminal and civil laws of the State and Federal Gov't. They cannot discriminate, they cannot pollute, they must meet state and federal wage and hour laws, they must meet state transportation laws, etc, etc. Why is this law different? There is no reason except slick legal distinctions made by the attorneys for academia. Yes, there can be arguments made that regents and trustees would prefer to meet their executive administrators in private on many matters that could embarrass a public institution reliant on donations from alumni. But, those arguments should be made to the Legislature with a call to change the law. They should not be unilaterally carved out by university attorneys recommending that the regents declare a business lunch a "social gathering" to try and shoehorn it under one of the Act's exemption. Open meeting laws are essential to good government and you know they must be effective because those under their aegis always seek to connive around the spirit of the law by misusing the letters of the law and challenging the public with a "so sue me" attitude.

MJSteklac

Sun, Mar 7, 2010 : 5:05 p.m.

In the Michigan Open Meetings Act it states: "Meeting means the convening of a public body at which a quorum is present for the purpose of deliberating toward OR rendering a decision on a public policy." If at any of these informal social lunches there is discussion of university business or policy, then it can be considered deliberation toward a decision even if the decision itself takes place at an open meeting. If you get a decision on a complicated or contentious issue without much public discussion by the body, you can bet that debate took place outside of the public eye. The social gathering exemption is only allowed if the public body is not doing so to avoid the requirements of the OMA. In those social situations extra care needs to be taken to avoid discussion or debate on university business. It's not enough to obey the letter of the law, but the Board of Regents, as a public body, a duty to comply with the spirit and intent of the law.

Stephen Landes

Sun, Mar 7, 2010 : 4:24 p.m.

My error clarified by the remarks of "Bonsai" -- yes I read this as an NCAA suit. On re-reading the article I found the name of Robert Davis is the person suing the U (MANY paragraphs into the article). My comments, however, don't change -- let Davis put his time and money into something really important like encouraging students to work hard and apply

Stephen Landes

Sun, Mar 7, 2010 : 4:14 p.m.

I can imagine the minutes of such a meeting: President Coleman: Mmmph arumph, mmph? (spoken with her mouth full) Regent "x": gurgle gurgle gurgle (while drinking) There is so much public information available about the Regents and our president I can't believe we really can't let them have lunch together without a stenographer present. What must they do if more than 2 want to go to the lavatory at the same time? The NCAA must have SOMETHING better to do with their time and money: I suggest encouraging minority students in elementary schools across the state to study hard, do their homework, and have comfidence that having done their best they will qualify as students at U of M and other fine schools in our state.

bedrog

Sun, Mar 7, 2010 : 2:51 p.m.

@ briegel...re the cranks and circusy aspects i referred to and you object to: some in ann arbor who are the most vocal on public comments issues are, sadly, all of those things and worse...and have been banned accordingly from even hyper tolerant venues like the UM MSA, assorted "peace and justice" groups..and have been multiply arrested at city council meetings ( and even curtailed on certain public interest cyber sites, at least those they havent caused to go out of business)..... im not referring to you of course, but the regents have every right, indeed duty, to have venues where they are free of such abusers of free speech, public blahdeblah etc... i might add, given your obvious political sympathies ( which overlap considerably with my own, although obviously not entirely),how do you feel about "tea partiers" who hijack public meetings with "obama is not an american citizen", "death panel" nonsense and the like? i, clearly unlike you, am enough of a pragmatist to recognize that public business is often better served by allowing the elected sane to conduct needed business free from the nattering and distractions of the non.. it's a balancing act admittedly but the UM has far from fallen from the tightrope on this one.

The Grinch

Sun, Mar 7, 2010 : 2:47 p.m.

David Briegel: You and I agree on much (apparently) but on this issue I must disagree. One of the reasons for the coarsening of our politics, I truly believe, is the fact that virtually every political forum is now on TV via CSPAN or local TV (e.g., CTN). Criminal trials have become cable fodder. Because of all of this we have far too many politicians, judges, and lawyers preening for the cameras and for their constituencies rather than doing things that make sense. Governing and legislating means making compromises, and compromises become harder and harder to find as the act of governance becomes public entertainment. Otto von Bismarck's oft quoted "Laws are like sausages, it is better not to see them being made" is absolutely correct. We need our legislators to be able to have free and frank discussions without fear of the consequences of saying something unpopular in those discussions. At the end of the day, we need them to hold them accountable for their work, not for the path they took to get there. We'll find out about it eventually (e.g., the deal for Nebraska on Medicaid) if something stinks. Much as have term limits, the Open Meetings Act has served to undermine the ability of the state and local governments to govern. But I believe that that was the point of both acts.

David Briegel

Sun, Mar 7, 2010 : 2:29 p.m.

bedrog, Sorry, but public officials should be able to state their positions in public. They can listen to each other, (novel idea) learn and deliberate in public. Which part of public don't you and they understand? We have the right to know that deals aren't being cut in private for less than honorable reasons. And oh, those evil lawyers. How many lawyers are employed by the U of M? Are they evil?? Of course not, corporate lawyers are all good guys! I love the response that citizens are idiots, disruptive cranks and fanatics and part of the public circus. The charade of adherence to the rules and the laws are very troubling to many of us "citizens".

Bonsai

Sun, Mar 7, 2010 : 1:40 p.m.

headline and subhead calling it an "NCAA lawsuit" misleadingly imply that the NCAA has filed suit against U-M

bedrog

Sun, Mar 7, 2010 : 12:38 p.m.

some meetings absolutely should be conducted away from the public spotlight, especially given the tendency of many local cranks...fanatics actually...to disrupt, hyper-parse, and grossly misrepresent to the likeminded via the internet, what actually went on. serious and mature decision makers need to have the privacy to deliberate out of such a circus setting which can inhibit candidness and honest debate..

townie

Sun, Mar 7, 2010 : 12:36 p.m.

I'm sorry, but waiting for election time to hold our elected officials accountable is simply not enough. We can't have an election every 2, 4 or 6 years and not have any clue what these people have been up to in the meantime. Virtually every single vote the Regents have is unanimously in favor of whatever is brought before them by the administration. The UM administration and its bureaucrats make sure that nothing is put before the regents unless the outcome is certain. This is not how a representative democracy is supposed to function.

Doug Boynton

Sun, Mar 7, 2010 : 12:20 p.m.

EMU's Regents did the same thing in the '70s...maybe still do. They'd go have a long lunch, go into public session in the afternoons, take all the votes with virtually no discussion, and go home. One said there was no requirement that the public be present for lunch...even a three-hour lunch.

bruceae

Sun, Mar 7, 2010 : 11:39 a.m.

Mary Sue and Crew has made it plain time and time again that she thinks the general population is just to dumb to understand what they need. Come on people she and the regents are SOOO much smarter than the rest of us so we should just continue to let them make these deals behind closed doors. Kind of reminds me of Obama Care.

blueprof

Sun, Mar 7, 2010 : 11:26 a.m.

Although it may be nice for an elected official to explain his or her reasoning to you, and you as a constituent may certainly press the official for an explanation, representative democracy allows you, collectively, to hold the official accountable at election time. If you don't like the decision officials made, or don't find their explanations sufficient, then you may vote against them. Lawsuits trying to compel them to share every thought or conversation the moment it occurs are misguided and harmful. It is a good idea for all officials to conduct some discussions away from the spotlight, in order to facilitate -- ironically enough -- frankness and completeness in exchanging information and ideas that special interests, extremists, and a generally unsophisticated public would otherwise discourage. So-called "sunshine" reform laws, of which open meeting acts are a key example, have had in many ways unintended and negative consequences for our politics and policy making. The evidence suggests that these practices often produce cynicism, alienation, polarization, delays, and in some cases special-interest dominated outcomes far from what they typical citizen wants.

bruno_uno

Sun, Mar 7, 2010 : 10:28 a.m.

in bad economic times, lawyers need to get money from somewhere, these open act meetings with public schools are easy pay dirt.

townie

Sun, Mar 7, 2010 : 10:26 a.m.

I don't think that simply voting in public is enough, as we saw recently with the recent City Council email scandal. The public could be missing out on quite a lot of information if the votes are scripted and counted long before the meeting (or even worse, discussed via email DURING the meeting). A vote is a simple process of raising hands, but the public deliberation of an issue is where officials can show us, the public, what they're thinking and thereby help us better understand the issue, as well as the thought process leading to the vote. If all they do is gather in a room and cast predetermined votes, well, a robot can do that. To me, a meeting ought to be a "meeting of the minds," not a meeting of the robot hands. Regents are elected officials and regardless of what latitude previous court decisions have given them, they should still aspire to openness and transparency to the maximum degree possible. They are there to represent us, the public, by holding the UM administration to task, not the other way around. Instead of a body of overseers, they're more like members of a country club board who are only there to have a nice lunch and bless this year's dues amount and maybe the fertilizer budget. Just think...when was the last time you saw the UM president or VP bring something to the Regents (at a public meeting) and had it voted down, or even postponed?

clan

Sun, Mar 7, 2010 : 8:51 a.m.

It seems to me that if votes are taken in public, and recorded in minutes open to public inspection, there is adequate transparency.

InsideTheHall

Sun, Mar 7, 2010 : 8:34 a.m.

Message to MSC: Summon the Bulldog into action.