On important issues such as tuition increases, upgrades to campus buildings and major personnel appointments, governing boards of Michigan’s public universities often hold the serious discussions and deliberations away from the public. Then when they emerge to take a vote, they appear decided, offering those attending little insight into the rationale and resolved contention of the decision.
This is the problem that faces students attending and communities housing Michigan’s 15 public universities. The public gets to see what is approved or rejected, but is rarely able to be a part in these decisions. While there is time for public comment, the difference it makes to an already-reached decision is what’s in question.
The public universities in the state of Michigan have a power that only two other states, California and Minnesota allows their public universities — total state constitutional autonomy.
“Ever since the 1999 Federated Publications case involving (MSU), university boards have felt that they do not have to follow any of the restrictions or requirements of the Open Meetings Act,” said Jane Briggs-Bunting, the president of the Michigan Coalition for Open Government and former president of The State News Board of Directors.
The Michigan Supreme Court in that case ruled the legislature does not have the constitutional authority to force the Open Meetings Act onto the universities. The Michigan Constitution does require the public universities in Michigan to hold “formal meetings” that are open to the public, but this does not preclude the governing boards from holding “informal meetings” in which they can deliberate and iron out policies and resolve differences.
“There’s not a city council in the state, there’s not county board of commissioners in the state that could operate like the 15 public university boards operate. They’re getting millions of dollars in tuition, millions of tax-payer dollars, and yet the public is totally shut out except for these formal sessions — that’s just wrong,” Briggs-Bunting said.
Relating to MSU
The MSU Board of Trustees holds six open board meetings each year where they vote on important decisions affecting all areas of the university, including its students.
During public meetings, members of the community have an opportunity at the beginning and the end of board meetings for public comment. If you sign up for public comment, usually required 48 hours before the meeting, you are granted three minutes to address the board.
It is stated on the Public Participation in Meetings page, “The Board regards the opportunity for expression of public views on issues before the Board as an important part of its deliberations.” But when those deliberations are made in private beforehand, the role of public input appears negligible.
“The universities should be a place where there is an open ended discussion with lots of ideas and people sharing differing opinions, and then either reaching a consensus, or not — and that doesn’t happen at the board level in public,” Briggs-Bunting said. “It may happen in private, but it’s certainly not happening in public.”
However, the MSU trustees have not been shy in the past in admitting that they do hold closed-door work sessions in which they sometimes have in-depth discussions that are important and would affect everyone at the university.
“They’re not willfully breaking the law, they’re just doing what they were told they could get away with,” Briggs-Bunting said. “And what they can get away with is having pre-meetings, retreats, anything.”
Shrinking Meeting Times
Briggs-Bunting said that while board meetings used to take three or four hours, many of them now only take around an hour or two due to the decrease in discussion that happens.
In fact, according to the public minutes from two of the three meetings this year, Jan. 8, 2015 and Feb. 6, 2015, those meetings did not last even one hour in length. The Jan. 8 meeting lasted 11 minutes, with the Feb. 6 meeting lasting 50 minutes, according to the minutes from those meetings. Full minutes from the last meeting on April 17 are currently unavailable.
During the Feb. 6 meeting, nine separate resolutions were voted on, all of which passed with a unanimous vote.
“They all operate that way,” Herschel Fink, the attorney representing the Free Press and LSJ said. “(They) make all of their deliberations, their discussions and their decisions in secret sessions and then they appear perhaps once a month and they vote on what they have already decided in an open session.
“(Universities) don’t want to be accountable, they don’t want to be transparent. They feel that they should be different than any other public body that’s spending our money.”
MSU Board of Trustees Chairman Joel Ferguson had no comment when asked about the meeting policy of MSU’s trustees. The rest of the trustees were unavailable for comment.
Current battle for transparency
The battle for greater transparency is currently being fought on two fronts in the state of Michigan. The first being in a lawsuit with the Detroit Free Press and Lansing State Journal suing University of Michigan’s Board of Regents.
The claim from the Free Press and LSJ is that UM’s Regents were violating the Michigan Open Meetings Act by having policy discussions behind closed doors, and only holding public sessions to vote on issues they have already decided upon.
On June 10 Michigan Court of Claims Judge Michael Talbot ruled in favor of the Regents of UM.
In his opinion, Talbot cited the decision from the Supreme Court in a 1999 case between Federated Publications INC. and Michigan State University’s Board of Trustees in which the Federated Publications claimed that MSU’s presidential search committee was violating the open meetings act by holding meetings not open to the public.
The judge in that case ruled that in the case of presidential searches, the university was allowed to hold non-public meetings without violating the Open Meetings Act.
The claim from the Detroit Free Press and LSJ for the current case is that the ruling only applied to the case of a presidential search, while UM’s Board of Regents argued that presidential searches were not the only thing that case exempted from the Open Meetings Act.
“I’m not shocked, that he came to that conclusion because that was the obvious argument that U-M would make,” Fink said. “There is some language in Federated that certainly refers to a broader context, but because the (Michigan) Supreme Court in Federated, in something like 12 places in the opinion emphasized that it was in the context of presidential selection, we felt that it was a meritorious argument that other contexts were not precluded.”
Fink said the Free Press will likely appeal the decision to the Michigan Court of Appeals and that the case could eventually end up being heard by the Michigan Supreme Court.
Legislative Action
The second front in which this battle is being fought, and the one that Fink believes is the best way enact any change, is the legislative side with a House Joint Resolution to amend the Michigan Constitution to require that all the meetings and records of governing boards of public universities are open to the public.
House Joint Resolution “O” is currently in the Michigan House of Representatives Committee on Oversight and Ethics.
HJR O, if passed by a super-majority two-thirds vote in the House and Senate, would be placed on the next general election ballot where a simple 50 percent majority would be required to enact it.
Sponsor of HJR O, Rep. Martin Howrylak, R-Troy said, “Consistent with the principles of open and transparent government, whether it is written or implied, the public has a right to access meetings and information.”
Co-sponsor of HJR O, Ed McBroom, R-Vulcan, said that the problem has been getting worse ever since the 1999 supreme court ruling.
“The constitution set the policy regarding open meetings for the universities, and the courts have currently interpreted that in such a way that disallows the Open Meetings Act to dictate how those open meetings are facilitated.”
The Resolution would not change the provision in the Open Meetings Act that allows for an exemption for university presidential searches, or exemptions in other specified situations.
