Government does not work best when the people are pushed out of the way

By Bruce Moats
Wyoming Press Association Attorney
Government does not work best when the people are pushed out of the way.
As James Madison said:
A Popular Government, without popular information, or the means of acquiring it is but a Prologue to a Farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance; and the people who mean to be their own Governors, must arm themselves with the power which knowledge gives.
“Government by the People” is not just some slogan from our glorious beginning as a nation. It is a working principle that serves us well each and every day. I have been fortunate that the people of Wyoming have allowed me to make a living serving that principle. I have believed it since I first came to Wyoming in 1984 and had the opportunity to serve the people of Lovell and Sheridan for 13 years as a reporter and editor. I have believed it in the 16 years I have had the pleasure to claim to represent the interests of the people as an attorney.
You get to know your readers up close and personal when one works as a reporter in Wyoming communities. You get a first-hand opportunity to see how government works when it is close to the people.
The experience only made my faith in our democracy grow. I learned that the collective wisdom of those folks who toil at work each day, who raise their families here, and who pay their taxes is to be trusted. I learned not to trust the often appealing reasons that those on the inside will cite for keeping the public out of the loop. The people of Wyoming are intelligent and reasonable folks. There are exceptions, but government always works best when people are allowed to know what is going on and to participate in their own governance.
One of many examples came early in my journalism career. In north Big Horn County there were four high schools in School District No. One. Those communities cherished their high schools. The school board did not even want to whisper the word “consolidation” publicly for fear of a backlash. But some of the members began to believe that the size of the schools was limiting the education of the students, so they decided to discuss consolidation, but only behind closed doors in an executive session. The newspaper protested that the board could not do so legally. The board raised the subject of consolidation in public at the next meeting. The response was remarkable.
People flocked to the meetings. They said they loved their communities and hated to see their schools go, but they had to put the interest of their students first. The passions were high. It was not easy. In the end three of the high schools were consolidated, and the students there now have wider opportunities to learn.
Now, the University of Wyoming Board of Trustees want you to believe that public participation will not serve us well in the selection of the next leader of the university. I spent two years in the UW news service before going to law school. I got to see first-hand that it is a place of which Wyoming people are quite proud, and rightly so.
We spent a day in court just a week and a half ago testing the Board’s position that it would be best if the people step aside and let the Board select the new leader in complete secrecy. Most of the day was spent hearing from witnesses supporting the Board’s position. Judge Jeffrey Donnell listened intently, and found their justification wanting. He was not the first judge to so rule. The state supreme courts in Minnesota, Michigan, Arizona and Texas all rejected similar arguments. Courts in Alaska, Ohio and Louisiana have rejected similar arguments regarding police chiefs and other local officials. The Alaska Supreme Court said:
It may be that in some cases an individual will not wish his current employer to know that he has applied for another job. That desire is one which cannot be accommodated where the job sought is a high public office.
Now the Board has asked their friends in the legislature to step in and declare that it is best that the people be shut out of the process.
I wish I could play a video of the hearing for the legislators and people of Wyoming. Instead, I will try to give you a sense of why the judge ruled as he did.
First, as I read the exhibits offered by the Board, they all supported our position that the proper balance here is struck by opening the process when the candidates who are seriously being considered by the governing body are chosen.
A survey published in 1985 found that 73 percent of the presidential searches at the universities surveyed – both public and private – had publicly announced the candidates. An update in 2004 for the Association of Governing Boards of Colleges and Universities (AGB) found that “most” searches have publicly revealed the finalists, though it did not give an exact percentage. Legislatures in other states that have considered the issue recently have mandated that the finalists be announced publicly. Tennessee just recently passed such legislation. Minnesota and New Mexico are two other examples. New Mexico requires a public notice be published listing the names of the finalists.
In 2012, AGB issued a brochure on presidential searches that states that finalists should not only be announced, but that opportunities be created for the university constituencies to meet with the finalists. Under the heading – “Engage campus constituents” – the brochure states:
Involving an institution’s constituents – including faculty members, administrators, students, and alumni – serves two important functions. First, it builds support for the new president. And second, it reveals important perspectives and wisdom that substantially improve the quality and outcome of the search. [emphasis added.]
AGB recommends to accomplish these goals that the university have “[w]ell planned, structured opportunities to meet with finalists as they visit the campus and to share individual observations.”
The AGB further states:
Overall, institutions tend to generate and maintain the largest number of good candidates when they can assure candidates of privacy until the final interview stage.
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Typically, the search chair congratulates those invited to campus, informs them that coming to campus will make their candidacy public, and sends them an information packet about the institution. The visits should be set up to allow various constituencies access to the candidates.
Laramie County Community College about two years ago announced the finalists for president at the campus. Northwest Community College just recently announced its finalists for president. An LCCC board member testified at this hearing that the public sessions allowed him to identify questions and issues that he otherwise might have missed. It allowed him to see how the candidates interacted with the public both in group and individual sessions.
UW’s witnesses spoke of the fear that some candidates have that their relationship with their current institution may be damaged if their candidacy is known, but could not demonstrate that the fear had a basis in reality. The witnesses could point to only one hearsay story about a president in Florida who was fired, purportedly for his interest elsewhere. Other incidents showed that where the candidacy of a sitting president became known publicly, and the candidates either withdrew or were not selected, those presidents remained with their current institutions for years later. One of the most visible was Gordon Gee who decided to stay at Ohio State rather than remain in contention for the California system after his fax burned up with messages from trustees, the governor and others urging him to stay. He later left Ohio State, but is now back again for a second tenure.
The search consultant hired by UW stated she only recruited candidates with a track record of success. She acknowledged that the track record of success would not only make the candidate attractive to the institution searching for a new leader, but also to the candidate’s current institution. Not one witness would say that a successful search could not be successful if the finalists are public. The success of the candidate chosen is the result of many factors, not just his qualifications and experience. This includes the current search for president of the University of Florida, which had significantly fewer candidates apply than Wyoming. In Florida, the entire search is public, including search committee meetings. The same search consultant who was hired by UW is working that search. She testified that Florida will have a successful search despite the lower number of candidates.
Now for the most striking example – the hiring of current UW President Tom Buchanan. UW announced the finalists at the time President Buchanan was hired. One of the three reportedly dropped out rather than be named publicly. The other two were both sitting presidents. Once people learned that Buchanan was not a finalist, they made their upset known. The board added Buchanan as a finalist and then the other two naturally dropped out. Dave Bostrom, the board chair, praised Buchanan’s leadership as exemplary and testified that the board wished it could refuse his resignation. Buchanan would not have been hired if the search had been completely secret. The people’s judgment proved correct.
As Judge Donnell ruled after hearing all of this and more, the Board of Trustees had “not established that the consequences of disclosing the finalists’ identities would result in substantial inability on the part of the Board to obtain a qualified, and ultimately successful, President.”
The Legislature has put House Bill 223, which promises to undercut the court’s ruling, on the fast track. The train is on the tracks. I fear that I and my colleagues are powerless to stop it. The legislators who support the bill will want to discount us as people who just want to sell newspapers. By the way, that is a bunch of hooey. Wyoming readers are smart. You don’t sell newspapers with sensationalism. You build your circulation one issue at a time, earning their trust each time. The readers consider their community newspaper to be theirs, not yours. They’re right.
My hope is that we will not be standing alone on the tracks. That when the legislators look down that track, they will see you all have joined us on the rails.