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

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.

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.

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.

"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.

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