UI trustees vowed transparency, but it's not always easy to see
Though the board of trustees, in the wake of the Category I admissions scandal, promised more transparency in its governance of the University of Illinois, members frequently meet behind closed doors.
The UI Board of Trustees took several steps two years ago to make its process more transparent and less complicated.
Board Chairman Chris Kennedy says that cutting committees from 14 to four made them more accessible to citizens. Additionally, the number of trustees on each committee was cut.
Kennedy said that because committees used to be composed of the entire board, it was difficult to reach a quorum to hold open meetings.
Kennedy was elected chairman of the board at its Sept. 10, 2009, meeting and promised openness about Category I.
At a board meeting two months later, he noted that board members might be "hesitant" to discuss some controversial matters in public. The board was still dealing with the admissions scandal and looking for both a new president and a new Urbana chancellor.
On Nov. 12, the minutes show, "Mr. Kennedy pointed out that many of the Board members are still adjusting to the public nature of Board meetings, are still getting used to one another, and may be hesitant to ask questions in front of an audience and press."
The board frequently hashes out issues behind closed doors, which a First Amendment lawyer says is contrary to the will of the Legislature.
Don Craven, who is general counsel to the Illinois Press Association and has sued the UI for Freedom of Information documents, said "the presumption underlying the Open Meetings Act is that government work should be done in open session."
Susan Davis of the Campus Faculty Association said faculty desire transparency in shared governance.
"We think the more openness about decision making in our public university the better — the university belongs to all Illinoisans. We've invested in it for more than a century and a half," she said.
While the General Assembly recognized situations where closed sessions might be appropriate, Craven said, "the more open sessions, the higher the sense of trust in that body."
He notes that the preamble to the Open Meeting Act states:
"It is the public policy of this state that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business. In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly."
The UI trustees have met in executive session at every regular meeting since the new board was formed two years ago, when the board was largely gutted by Gov. Pat Quinn, and both President B. Joseph White and Chancellor Richard Herman resigned.
Since March 10, 2010, the trustees have begun every regular meeting with an executive session, often for up to two hours. The entire April 5, 2010, and April 9, 2010, special meetings were in executive session.
After the closed sessions, some of which in the afternoon reach three hours, most of the current board's votes have tended toward unanimity, with the notable exception of a recent vote on the Institute of Aviation.
In the July 2011 tally, voting "yes" were trustees Karen Hasara, Patricia Brown Holmes, Ed McMillan, James Montgomery, Lawrence Oliver and Pam Strobel. Voting "no" were Ricardo Estrada and Tim Koritz, as well as all three student trustees. Kennedy was absent at the time.
UI spokesman Tom Hardy said there's a reason for agreement among trustees that has nothing to do with closed sessions.
"Many agenda items aren't related to the topics typically covered in executive sessions (litigation, employment, real estate), and so they wouldn't have been discussed in closed session," he said. "Also, a lot of agenda items are hashed out during presentations and discussions at open, public meetings of the (trustees), standing committees leading up to the ... meeting."
In some ways, the new board has improved on its predecessors.
On March 3, 2009, the last meeting before Category I broke, the former board went into executive session without noting either the time or the vote.
There's nothing illegal about meeting in closed session, and it's not an uncommon practice for large institutions — the Northern Illinois University board, for instance, has had an executive session at every regular board meeting this year.
According to the Open Meetings Act, boards can close meetings when discussions fall under the 24 categories that include most commonly personnel (hiring and firing), litigation, security, student privacy and land acquisition or sale.
The taking of final action at any closed meeting is prohibited.
The law notes that boards do not have to have any executive sessions at all:
"The exceptions authorize but do not require the holding of a closed meeting to discuss a subject included within an enumerated exception."
The law also says that all public bodies have to audiotape or videotape their closed meetings.
Kennedy said the trustees electronically record every closed session and make them public at a later date after a vote.
The board votes twice a year on whether to release documents. In June 2011, the trustees released previously undisclosed minutes about the Pell Farm land swap and transfer to the UI Foundation in 2006, references to litigation in 2007, medical malpractice in 2008 and 2009, and an agricultural station in 2010.
At the previous meeting in November 2010, no new information was released.
The chairman said last week that, besides recordings, there is another layer of protection in having University Counsel Tom Bearrows and other legal staff monitor meetings to make sure nothing is discussed that couldn't be discussed in closed session.
Many boards in Illinois, to open the process to the public, hold a roll call vote on the motion for closure. Some similar bodies, like the Illinois Board of Higher Education, routinely do so, but the UI trustees do not.
"Voice vote on executive session is appropriate unless someone asks for roll call vote," Hardy said in an email. But the minutes do not reflect individuals in the voice votes, only who made the motion and who seconded it.
He said the votes to close meetings are almost always unanimous.
"I can't remember in the 10 years I've been doing this when there was an absence of unanimity," he said, because the university, with its large medical campus as well as other units frequently address litigation.
In the July 2011 meeting, the motion for cloture was recorded as "made by Ms. Strobel, seconded by Mr. Montgomery, and approved" without naming the voters.
The Open Meetings Act says that each vote must be recorded but does not use the words "roll call":
"The vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception ... of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting."
Robyn Ziegler of the Illinois attorney general's office said the law "speaks for itself," and the office could not render an opinion on the process without a formal request for review, which is pending by The News-Gazette.
Josh Sharp, director of government relations at the Illinois Press Association, said it was possible that the law's standards could be met by a voice vote — often unanimous at UI meetings — with each voter marked as "yes."
Sharp added that, even in unanimous votes, "it would help if these votes were recorded."
Kennedy notes that the early board meetings needed closed sessions, especially for hiring, since there was a rapid turnover of administrators.
All told, the board has hired 20 top administrators in about two years, Kennedy said, including two chancellors, President Michael Hogan and several interim leaders.
Kennedy said that in matters of litigation and land purchases, it benefits the taxpayers not to have early positions exposed. He also mentioned health and student privacy issues.
Hardy said executive sessions serve a useful function:
"Executive sessions occasionally slow down the pace of a board meeting, but they are appropriate and necessary in the effective governance and management of a large, $5 billion-a-year higher education enterprise with more than 40,000 full- and part-time employees spread across three teaching-and-research campuses and a major medical center."
He said the diversity and expanse of issues facing the UI necessitate some closed sessions.
"The board has six regularly scheduled meetings annually and probably averages about two hours of executive session at each one for a total of roughly 12-18 hours a year; not bad when you consider the variety and volume of issues the trustees and administration confront," Hardy said.
"It is important to keep in mind that such deliberations are allowed under the Open Meetings Act and that action by the board takes place in open, public session," he added.
But the estimate of two hours may be more than generous to the institution.
In the trustees' meeting on Sept. 9, more than half of the meeting was conducted in executive session.
There was a one-hour closed session in the morning and a three-hour closed session in the afternoon. Then, after the meeting's scheduled time was over, Kennedy told a small audience they could go home, because the board was going into a third closed session, and after that would take no public action.
This story appeared in print on Oct. 30.