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Experts: CU, others violating ‘spirit of the law’ with sole finalists

Legal experts say the law intended for multiple finalists to be named

University of North Dakota President Mark Kennedy, the sole finalist for president of the University of Colorado system, speaks Friday during an open forum at Macky Auditorium at CU Boulder.
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The University of Colorado system has named a single finalist in its past four presidential searches, but some question whether doing so follows the spirit of the law.

University officials say naming sole finalists is necessary to ensure they get the best applicants, but others who study the issue say whether a search is secret or open doesn’t affect the quality of applicants.

The recent selection of Mark Kennedy to replace President Bruce Benson has ignited criticism of CU’s process yet again. Kennedy, who is leaving his post as president of the University of North Dakota, faced backlash for his lack of direct answers during open forums, his conservative congressional voting record and controversies during his time in higher education.

But some also took issue with the search process, calling for more finalists to be named or considered. The search committee sent six candidates for consideration to the Board of Regents, which initially voted unanimously to name Kennedy as the sole finalist. After Kennedy was publicly named for 14 days, as legally required, the regents voted 5-4, along party lines, to name Kennedy the CU system’s next president.

The spirit of the law

State law discusses finalists in two places: open records law and open meetings law.

The laws state the “list of all finalists under consideration for the position of chief executive officer” will be made public at least 14 days before someone is appointed to the position. Another part of the law explains that a “finalist” is a member of the “final group of applicants.” If three or fewer applicants for the position “possess the minimum qualifications for the position,” they will all be considered finalists.

Some have said they think CU, as well as other institutions such as Colorado State University and school districts, are violating at least the spirit of the law by putting forth sole finalists.

“I think it’s disrespectful to taxpayers by not letting them know what you did and why you did it,” said Greg Romberg, a longtime lobbyist for the Colorado Press Association.

He added that, while it has yet to be litigated, this practice probably violates the letter of the law as well.

Romberg points to the part of the law that specifies that having three or fewer people who meet the minimum qualifications makes all those people finalists. He said it’s hard to believe, at least in CU’s case, that only one applicant met the minimum qualifications.

“Can you imagine … if they paid a professional search firm to run the process for them, and at the end of the day only one person met the minimum qualifications?” he said. “That’s just not possible.”

Speaking on behalf of the university and the Board of Regents, CU system spokesman Ken McConnellogue said he disagrees with that interpretation of the law.

“We think we meet both the spirit and the letter of the law,” he said.

McConnellogue said that at least 50 people probably met the minimum qualifications, and the 28 people interviewed by the search committee definitely did. He added that people didn’t raise concerns with the last three presidential searches, which also resulted in single finalists.

University counsel Patrick O’Rourke said the board complied with the legal requirements which allow, but do not require, “the board to name a sole finalist when it has evaluated the candidates and determined that a sole finalist possesses the traits necessary for service in the role of the presidency, including through the board’s assessment of the candidates’ interactions with the board through the interview process.”

O’Rourke continued to say that, while the board can name more than one finalist, many Colorado institutions name sole finalists. He said this doesn’t indicate a failed search, “but recognizes the judgment of the Board of Regents to assess the candidates and determine which meets its requirements.”

O’Rourke also said he couldn’t comment on regents’ deliberations that led them to a sole finalist.

When asked what criteria the regents used, O’Rourke said the board didn’t use a ranking sheet, but instead broadly considered the attributes included in the charge to the search committee.

Regent Chair Sue Sharkey, R-Castle Rock, and Regent Vice Chair Jack Kroll, D-Denver, did not respond to requests for comment. Sharkey was on vacation and deferred to McConnellogue.

Regent Linda Shoemaker, D-Boulder, said she believed there were at least three well-qualified candidates, including some whom she felt were more qualified than Kennedy.

However, Shoemaker said the board majority of Republicans was “only willing to bring forward a sole finalist.”

“I felt, at that point in time, I had no other option,” she said, adding that she respects that Kennedy is now the president and wants to help him be successful.

Better candidates?

The benefits of open searches include better vetting and a greater feeling of trust from people in the community, as well as greater interest, according to Frank LoMonte, director of The Brechner Center for Freedom of Information at the University of Florida. In contrast, he said, the only benefit of a closed search is that candidates won’t have to fear retaliation from their current institutions.

“We’re building the entire search process around legitimizing retaliation,” LoMonte said, adding that an easy solution would be making such retaliation illegal.

In the case of CU, O’Rourke has said the search firm it used, Wheless Partners, “believes it is much harder for them to recruit candidates into the pool unless the candidates can be assured that their candidacies can remain confidential,” so it doesn’t jeopardize their current employment.

About 50 years ago, 2% of presidential searches were done using a search firm. Today, it’s 92%, according to Judith Wilde, chief operating officer of and a professor at the Schar School of Policy and Government at George Mason University who researches presidential searches.

Wilde has said she believes search firms benefit the most from closed searches. They can submit candidates to multiple schools, and those schools won’t know who has rejected the candidates.

LoMonte has researched whether closed searches produce better candidates, and found no differences from open searches.

In a report printed by the American Association of University Professors, LoMonte explains how he compared recent presidential appointments in Georgia, which used secret sources, with those in Tennessee and Florida, which disclosed finalists’ names. If the search firms were correct, Georgia should have gotten “better-credentialed presidents who came from sitting presidencies,” LoMonte wrote.

“Based on the recent experience of the three states, we found that a closed search was slightly, but not dramatically, more likely to result in the appointment of a sitting president from another institution,” he said.

However, the stronger correlation was between a closed search and promoting a candidate from within.

There also was no difference in the searches’ ability to attract presidents from highly rated institutions. LoMonte’s report used the Association of American Universities to determine the prestige of institutions, and found that two of 24 Georgia presidents, one of 12 Florida presidents and none of nine Tennessee presidents came from leading research universities.

“The search firms insist that they need the secrecy primarily to get sitting presidents to apply, but it’s actually pretty rare,” LoMonte said.

Romberg said he was on the state board for the Colorado Community College System and helped hire presidents for 12 of the colleges. There were only two cases in which there was a sole finalist, and the other 10 had multiple candidates who were publicly named and attended meetings. He doesn’t remember anyone dropping out of the process because they didn’t want to be named.

“If someone doesn’t want the job enough to be public, then maybe they’re not the best choice,” he said.

Search success

Tom Kelley, an attorney at Killmer, Lane & Newman, LLP, in Denver, said the regents’ decision to put forth a single finalist effectively asks the public to trust that he was the only qualified candidate.

“The whole purpose of the open meetings and open records law is for that not to happen, and for the public to at least understand how they got to where they ended up,” Kelley said.

To Kelley, having one finalist makes it obvious the board has “in effect made a decision.”

CU Staff Council Chair Nancy Moore said, before the vote to appoint Kennedy on May 2, that many staff felt it was pointless to voice their concerns or opinions when they learned there was only one finalist.

Kelley said it’s clear the drafters of the law intended there to be more than one finalist, but did leave it open for the board to say there was only finalist who was qualified.

“Which is curious,” he said. “It’s hard to imagine that a place like CU wouldn’t draw more than one qualified candidate.

“It sure makes one suspicious,” he added. “When you do things like that and basically say, ‘Trust me,’ it’s hard for people not to wonder if they made some choices among qualified candidates based upon their ideas of what’s most important.”

If it were true, LoMonte said that would indicate a failed search.

“They’re either violating the law or they’re admitting the searches were failed,” he said.

LoMonte also said he finds it “inconceivable” that people are still discussing this after the #MeToo movement. It’s imperative to make candidates public, now that the public has seen many men in power be exposed as harassers.

“You’re being reckless,” he said.

While the regents said university staff vetted Kennedy with his institution after he was publicly named, LoMonte said it “didn’t really matter because they were already married to him.”

“Shouldn’t it worry us more, in an age of #MeToo disclosures, when the pervasiveness of harassment by men in authority is undeniable, that the background check is less rigorous for a college presidency than for an entry-level security-guard job?” LoMonte wrote in his report.

Romberg said an open search would have better served Kennedy and the community.

“It’s disrespectful to the public to not let them know what you’re thinking,” he said. “If it turned out that Mr. Kennedy clearly was the very, very best one, then bringing in all the finalists would have made that obvious.”

Romberg believes the practice could change one of three ways: With the public making noise about the issue, a lawsuit or through legislation that would “tighten” up the laws regarding the process.

The Daily Camera reached out to several lawmakers who lead education committees to see what they thought about the issue, but only the office of Rep. Bri Buentello, D-Pueblo, responded, saying she was not prepared to comment on the issue.

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