This story originally published online at N.C. Policy Watch.
The UNC-Chapel Hill Board of Trustees again approved a new provost in an emergency meeting Tuesday, though its chairman insisted a secretive vote last week on the same issue was legal and appropriate.
“While I am confident that we took the action appropriately last week, it is important to me that we end any speculation as to validity of this appointment and the salary votes,” said board Chairman David Boliek. “The integrity of the university, the integrity of the board, is important to me.”
Boliek said the state open meetings law and the Human Resources Act have “competing strands” that sometimes make it complicated to decide what information should be disclosed to the public at what time. While everyone may have their own opinions as to when that information should be disclosed, Boliek said, it is up to the board to make that decision.
“I will tell the the board and the public that I don’t intend to call an emergency meeting, a special meeting, every time social media or the student newspaper decides to question something the board does,” Bokiek said.
Having a “do over” whenever decisions are questioned isn’t fair to the board or the university, Boliek said.
In the aftermath of last week’s vote, legal experts from across the state questioned the legality of the vote and some of the largest professional media outlets in the state, including WRAL and the News & Observer, produced stories examining the issue.
Tuesday’s vote went just as last week’s did, with the board voting to approve Chris Clemens, a physicist and associate dean at the university, as its new chief academic and chief operating officer. Lamar Richards, student body president at UNC-Chapel Hill, was the only member to vote no or to abstain.
After the vote, Richards took to Twitter to voice his concern about the process.
“I voted no on Chis’ appointment simply because I don’t believe he’s the right person or the job,” Richards said. “Simple. After interviewing every candidate and reviewing every CV, Chris came nowhere close to being a top-contender (IMO). This is not about him as much as it is those in the pool.”
Last week multiple members of the UNC Board of Trustees told Policy Watch Chancellor Kevin Guskiewicz faced pressure to forward Clemens’s name to the board and that his credentials as one of the most conservative members of the faculty made him the favorite choice of conservative members of the board, the UNC Board of Governors and Republican dominated North Carolina General Assembly.
During Tuesday’s meeting board member Marty Kotis asked UNC-Chapel Hill General Counsel Charles Marshall to confirm that the emergency meeting was in compliance with the open meetings law. Marshall initially said he would prefer not to give any legal advice to the board in open session. The chairman said he saw no need to move into closed session to discuss the issue. When pressed, Marshall said that the chairman was entitled to call an emergency meeting and that he saw no legal impediment to it. He did not publicly address the legality of last week’s meeting.
Among the expert voices questioning last week’s board vote was Gerry Cohen, who helped write the open meetings law in question. Cohen, who served as a staff attorney and special counsel to the General Assembly for 40 years, said last week’s board vote seemed an almost perfect example of how to violate the statute on open meetings.
The statute at issue is 143-318.13, particularly the sub-section on “Acting by Reference.”
“The members of a public body shall not deliberate, vote, or otherwise take action upon any matter by reference to a letter, number or other designation, or other secret device or method, with the intention of making it impossible for persons attending a meeting of the public body to understand what is being deliberated, voted, or acted upon,” that part of the statute states. “However, this subsection does not prohibit a public body from deliberating, voting, or otherwise taking action by reference to an agenda, if copies of the agenda, sufficiently worded to enable the public to understand what is being deliberated, voted, or acted upon, are available for public inspection at the meeting.”
Neither board’s agenda for last week’s meeting nor any public comments by the board members would have let the public know that the board was voting on a new provost or any details of the hire. Board and local government frequently release information about what position is being filled without running afoul of the state Human Resources Act.
The board instead voted on several numbered “action items” that gave the public no insight into what the board was actually approving, which Cohen said is almost exactly what is specifically prohibited by the open meetings law.
“This is what they call ‘black letter law,‘” Cohen said. “It’s pretty specific. I don’t understand how anyone could think that wasn’t a violation. It’s crystal clear”
If the board frequently votes in this manner, as Boliek has said in defense of last week’s vote, Cohen said it may be worth asking what other votes have been violations of the law and whether the board may need to reconsider those votes as well.
Cohen also questioned whether Tuesday’s meeting, which the board publicly announced less than three hours before it met, meets the standard for an “emergency meeting.” The statute defines an emergency meeting as “one called because of generally unexpected circumstances that require immediate consideration by the public body.”
“Is it an unexpected circumstance that they decided not to follow the law?” Cohen said. “I think you’re expected to follow the law.”
It is also unclear whether the matter needed “immediate consideration,” Cohen said.
The board did not make that clear Tuesday, with Boliek simply saying he called the meeting to put the matter behind the board and move forward.
“The board has been unfairly accused of violating the law by not revealing all details about the personnel action at the time of the votes,” Boliek said. “Some have gone so far as to challenge or question the validity of our votes. Those accusations have unfairly stained this board process and this board and has created unwarranted speculation about the validity of the appointment.”
But Cohen said the board didn’t need to reveal all the details of the personnel action to stay on the right side of the open meetings law. It simply needed to give the public enough information to determine what was being voted on, not information about the specific candidates, proposed salaries or any terms fo employment. Giving such information when voting on hires or appointments is commonplace, Cohen said, and has been since the law was passed in 1979.
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