Open records law clear that CU regents must disclose finalists in presidential search

The Board of Regents’ authority to choose the president of the University of Colorado system is not in
dispute. As former CU Regent Steve Bosley reminded us in his guest column, the Colorado Constitution
vests that power in the university’s governing body.

But ensuring the regents abide by the state’s sunshine laws in no way undermines that authority as Mr. Bosley suggested. “CU’s president shouldn’t be determined by court rulings or by media demands under
catch-all calls for transparency,” he wrote in support of the board’s 5-4 decision to appeal a judge’s ruling in an open records lawsuit brought by the Boulder Daily Camera.

The open-government statutes do not direct public bodies like the Board of Regents “as to how to do their business,” Denver District Court Judge A. Bruce Jones stressed in his March 6 decision. However, the Colorado Open Records Act and the Colorado Open Meetings Law do create enforceable duties on the
regents to “disclose their business to the public.”

“And if the way a public body conducts its business does not comply with its disclosure obligations, that body violates the sunshine laws,” Judge Jones concluded.

Notably, Mr. Bosley’s column makes no mention of what the sunshine laws provide and for good reason – that is the only question the judge decided. Because the judge made the correct decision, an appeal is a waste of taxpayer funds and unnecessarily burdens the court.

What do the sunshine laws require of a state public body, like the CU regents, when it considers hiring a chief executive officer? A search committee’s meetings to discuss candidates may be conducted in executive session – outside the public’s view – and all records of applicants who are not “finalists” are exempt from public disclosure. But the names and application materials of all “finalists” must be made public 14 days prior to extending an employment offer to one of the candidates. “Finalist” is defined as “a member of the final group of applicants or candidates” for a chief executive officer position.

For the CU president’s job, a vetting process narrowed a field of more than 180 applicants and the regents selected six for interviews. The board violated the law by providing only Mark Kennedy’s name and job application to the Daily Camera in response to the newspaper’s requests for the names and applications of all finalists for the presidency. Kennedy and the five other applicants who were interviewed were finalists “under the plain and ordinary meaning of the statutes,” Judge Jones ruled, and all six names should have been disclosed no later than 14 days prior to Kennedy’s appointment.

Holding the regents accountable for failing to comply with the sunshine laws is not just a “call for transparency.” It is a legal requirement, one imposed by the General Assembly and former governors, to make sure the community gets a good look at the “finalists” who are seriously considered for a chief executive position. It is not up to the regents or even judges to decide if that policy decision – to require disclosure of finalists’ names and applications – is a wise one, or whether it will inhibit state institutions from attracting the most talented candidates for their top leadership positions. That is what the legislature mandated. That is the law.

Here’s how the late state Sen. Tilman Bishop, who also served as a Republican member of CU’s Board of
Regents, put it in 1994 when the law changed to keep records submitted by non-finalists confidential: “When you get down to the finalists, we’re going to give them a period of time, and those people are going to have their records, their names known and some of the records be available to the public, to the press or whomever else wants that kind of information.”

Mr. Bosley mistakenly believes the sunshine laws somehow dictate the regents’ choice for who should be CU’s president. Those laws merely ensure a selection process that, as Judge Jones wrote, promotes “transparency and trust in government institutions.”

Jeffrey A. Roberts is executive director of the Colorado Freedom of Information Coalition.

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