Attorney General Martha Coakley cites University of Massachusetts trustees for multiple violations of Open Meeting Law

Coakley said trustees held an illegal closed meeting to interview 3 finalists for the presidency of the 5-campus University of Massachusetts.

BOSTON – Attorney General Martha M. Coakley on Thursday found that trustees for the University of Massachusetts committed “wide ranging and serious” violations of the state’s Open Meeting Law throughout the process of selecting a new president, culminating in January with an “unlawful executive session” to interview three finalists for the top job.

The Republican file photoAttorney General Martha Coakley

In a 17-page letter to the university's general counsel, Assistant Attorney General Jonathan Sclarsic spelled out the violations in detail and ordered seven remedies, including requiring all trustees to undergo training in the Open Meeting Law prior to the process for appointing a new chancellor for the University of Massachusetts at Amherst.
The attorney general said the trustees' separate interviews with each of the three finalists for president on Jan. 13 should have been held in open session, but instead took place in a three-hour closed meeting.

A committee can screen preliminary candidates in executive session, but once candidates pass the preliminary stage and become finalists, those interviews generally must be public, except for the purposes of a narrow discussion about reputation and character, the attorney general said.

After the illegal closed session, trustees immediately voted in the open to select Robert L. Caret as the new president to replace Jack M. Wilson.

The Republican had asked Coakley about the Jan. 13 closed session as part of Sunshine Week, a national campaign led by the American Society of News Editors to underscore the debate about open government and freedom of information. Coakley's office notified trustees of the investigation on March 14, the day after the article appeared in The Republican.

The attorney general could have imposed tougher sanctions such as nullifying the board’s decision or issuing fines.

In a statement, Coakley defended her decision.

“This is a strong action that makes clear that these violations should not have occurred, requires the board to take corrective remedies, and works to ensure that the mistakes do not happen again,” Coakley said.

The Republican file photoRobert Ambrogi, lawyer and member of state's Open Meeting Law Advisory Commission

Robert J. Ambrogi, a lawyer and member of the state's Open Meeting Law Advisory Commission, said the attorney general should have nullified the trustees’ appointment of Caret to drive home the importance of the law and the need for compliance.

Ambrogi said trustees received what amounted to “a slap on the knuckles” for what the attorney general said were serious and pervasive violations of the Open Meeting Law. The remedy should have been equally as grave, but it fell short, Ambrogi said.

“If you are going to have a law, you have to decide if you are going to enforce it,” Ambrogi said.

Corey D. Welford, chief of staff for Coakley, said the office needed to prove the violations were intentional in order to issue fines. Under the law, the attorney general can issue $1,000 fines against a state or municipal board for each intentional violation of the Open Meeting Law.

Welford said trustees acted on advice of general counsel, raising doubts about whether the infractions were intentional.

The Republican file photoHenry Thomas III, vice chairman of UMass board of trustees

When state legislators overhauled the Open Meeting Law in 2009 and put Coakley in charge of enforcement, they also watered down the law by requiring violations to be "intentional" to carry a fine. Ambrogi said that when legislators inserted the word "intentional," it created a new legal standard that makes it virtually impossible to prove violations in court and impose a fine.

James J. Karam, chairman of the university’s board of trustees, issued a statement saying, “ future searches at the University of Massachusetts will be conducted in a manner that is fully consistent with the Open Meeting Law and with Attorney General’s findings and directives.”

Karam said there was “a very real risk” of losing top candidates for president if the interviews were held in public, but the trustees wanted to meet the finalists.

“We believed that this executive session was consistent with state law and saw it as means of balancing two competing interests,” Karam said.

All three candidates had indicated they would refuse interviews in open session, the attorney general’s letter said, citing a review of minutes of the executive session.

Karam said he is pleased the issue is resolved and the attorney general said the matter is now closed.

The attorney general cited multiple violations of the Open Meeting Law during the presidential search process. Trustees, for example, routinely permitted some members to participate in meetings by telephone – a currently banned practice -- during meetings of the search committee and the board of trustees, the attorney general said.

The search committee failed to maintain sufficient minutes of its meetings, the attorney general said. The search committee and board of trustees also did not provide an adequate listing of topics in meeting notices during the search, the attorney general said.

The search committee was also faulted for merely continuing a Sept. 17 executive session for screening candidates to another five meetings without posting notices of any of the meetings or convening again in public to vote for a closed session for a specific reason, as required by the law, the attorney general said.

The attorney general said trustees cited two other inappropriate purposes for the Jan. 13 closed meeting with finalists including a need to discuss strategies for negotiating contracts with non-union personnel. Karam said some trustees had questions about salary ranges and other requirements of finalists. However, the attorney general said those questions were asked in the context of choosing a president, not negotiating their contract, and should have been aired in the open.

UMass Open Meeting Law Investigation, Letter from AG’s Office

Henry M. Thomas III of Springfield, the vice chairman of the trustees and the search committee created for a new president, said trustees may have made some “honest mistakes” during the search for the new president.

“There was always good faith being exhibited throughout the process,” Thomas said. “There’s not a lot of guidance on some aspects of the law.”

Thomas said it was “good news” that the behavior of the board was not so egregious that it compelled the attorney general to impose sanctions such as nullifying the decision. The attorney general’s remedies imply there was no bad faith involved on the part of trustees, he said.

Thomas said the attorney general’s detailed ruling will help trustees and other state boards in complying with the Open Meeting Law in the future.

In addition to training for trustees, the attorney general ordered other steps to comply with the Open Meeting Law. These include releasing "full and accurate" minutes of six meetings of the search committee, a review and possible release of minutes of the Jan. 13 meeting and submitting to the attorney general all meeting minutes created during the process for appointing a new chancellor for the flagship Amherst campus.