Michigan universities make secret decisions; some lawmakers want change

Public universities’ transparency to the public has been an issue for decades
Universities have taken latitude with a 1999 court decision that they don’t have to follow the Open Meetings Act, some say
Many have tried to change the situation through activism, lawsuits and legislation

Eric John Roberts was a college student and a school board member when he learned a state law requiring most government bodies to conduct business publicly did not apply to the state’s 15 public university boards.

A man poses for a photo — Eric John Roberts can’t believe that public universities don’t comply with the Open Meetings Act years after he fought for change as a student. (Courtesy of Eric John Roberts)

Roberts went to a Grand Valley State University board meeting nearly a decade ago and struggled with onerous rules about speaking before trustees. He also watched as they had discussions behind closed doors then voted publicly without much debate. As the student body president, he lobbied trustees to adhere to the state’s Open Meetings Act, wrote student newspaper editorials about the issue and spoke with lawmakers who sponsored legislation with the same goal of open government as his. His passion for the issue was among his motivations for enrolling in law school.

“I would love to sue my alma mater or another state university for failing to comply with the Open Meetings Act,” said Roberts, who is finishing his law degree at University of Toledo and will take the bar exam next February.

Chris Knape, a GVSU spokesperson, said: “Grand Valley is committed to openness and transparency and our board and committee meetings are open to the public in compliance with constitutional requirements.”

The state’s public universities say they comply with the Open Meetings Act. But others lament that a decades-old Michigan court decision regarding university transparency allowed, among other things:

The University of Michigan to fail to release a report into its sports department after spending millions of dollars investigating.
Michigan State University to allegedly make secret decisions regarding the release of documents in the scandal involving pedophile doctor Larry Nassar.
Four Wayne State University board members to allegedly meet illegally, prompting four other board members to sue.

Michigan uses public money to fund public universities — $1.8 billion in the coming budget year alone — and that is why students have lobbied for more transparency, the Detroit Free Press has sued U-M for alleged Open Meetings Act violations and lawmakers have repeatedly proposed legislation to force transparency, including in the current session.

State Sen. Ed McBroom, who has pushed for change for years, labeled universities “incredibly arrogant” and “vile” for routinely making deliberations in private.

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At issue is the Michigan Constitution, which grants public universities autonomy while stipulating they must conduct their business in public. But then the Michigan Supreme Court ruled in 1999 on a case filed against MSU by The Detroit News and Lansing State Journal over MSU privately searching for a president. The justices ruled that “application of the (Open Meetings Act) to the internal operations of the university in selecting a president infringes on (the university’s) constitutional power to supervise the institution.”

Some say the ruling has been interpreted by universities to cover not just presidential searches but many other issues and allowed university boards to not adhere to the Open Meetings Act.

The issue was highlighted recently when MSU Trustees Mike Balow and Dennis Denno discussed on a podcast what they viewed as a lack of transparency regarding Spartan Media Ventures, a private, for-profit corporation seeded with a $100 million commitment to enhance the brand of MSU Athletics and facilitate capital investment.

Balow said he proposed a resolution to subject Spartan Media Ventures to the Michigan Freedom of Information Act. Trustees would have had to vote publicly on his proposal, but five trustees voted to take it off the agenda, so it never happened. He called it “bad governance” that trustees didn’t want to discuss it publicly.

Denno suggested the root of the problems in that and other issues is that universities are not required to adhere to the Open Meetings Act.

“So the eight of us (trustees) can meet and have serious discussions,” Denno said. “We don’t vote but all decisions are made in private. And we’re talking about millions, billions of dollars determined and the public has no idea what we’re doing.”

Daniel Hurley, chief lobbyist for Michigan’s public universities, said the institutions follow the Open Meetings Act, which allows some secret dialogue on “sensitive matters” such as personnel or contractual agreements.

“The amount of dialogue that takes place could be debated,” said Hurley, CEO of the Michigan Association of State Universities. “But all decisions are made in the public setting and there is a comment period in all those open board meetings.”

‘Antithetical to good government’

Among the lawmakers advocating reforms is McBroom, a Republican who has sponsored legislation five to six times, including in the current session. His latest resolution proposes that the Open Meetings Act would apply to public universities. Since that would require a constitutional amendment, the resolution would need approval of two-thirds of lawmakers and then would appear before voters in the next general election.

“Because the Constitution grants universities autonomy, this would say you have autonomy but you still have to follow the Open Meetings Act and FOIA,” McBroom said.

Over the years, McBroom has seen many scenarios in which he says universities skirted openness, including the scandal involving Nassar, many university presidents that have come and gone with little explanation and residents getting removed from public meetings.

“We wouldn’t accept this from our local community colleges, school boards, cities, the Legislature,” McBroom said. “It’s completely antithetical to good government. When you talk to universities about this, they say, well you don’t understand. We are like a business and we have to have these abilities to have secret meetings.

“I even had one university president tell me that we think of ourselves as the fourth branch of government and therefore we need this ability to have all of our discussions in private.”

None of this is surprising, since most public universities have fought to keep private the identities of candidates interviewing for a presidency, said Ken Paulson, director of the Free Speech Center, a national organization at Middle Tennessee State University.

“Also universal is give them an inch and they’ll take a mile,” said Paulson, a former editor in chief at USA Today.

The issue has frustrated advocates for government transparency, including Lisa McGraw, public policy manager at the Michigan Press Association.

“If taxpayers’ dollars are being spent, which they are at our state universities,” McGraw said, “then why would the public not have access to how that money is being spent?

Michigan’s Open Meetings Act was “clearly written to include university boards,” with exceptions for boards to meet privately for some matters such as litigation or personnel, said Eric Lupher, president of the Citizens Research Council of Michigan.

“It’s not good for accountability for residents who may be inclined to really look at the day-to-day actions of these bodies to know how decisions are being made,” Lupher said.

Lupher sees two potential remedies: a new lawsuit to rein in the 1999 decision, since interpretation has grown so wide as to make the Open Meetings Act a “toothless tiger,” or for the Legislature to address the issue.

Over the years, efforts have been made.

In 2015, the Detroit Free Press sued U-M after an analysis by the newspaper showed that public discussions by the Board of Regents occurred in 12 of 116 matters on their meeting agendas between January 2013 and February 2014. At the time, U-M said no voting or discussion of voting occurs during informal sessions.

The state Supreme Court declined to hear the newspaper’s appeal in 2016 after the state Court of Appeals and a lower court ruled in favor of U-M, noting that the state Constitution allows public universities to hold private informal meetings and only requires formal meetings to be public.

“We are simply not empowered to evaluate whether that is good policy

or, for that matter, take any action on the basis of whether we might believe it to be,” the Court of Appeals said.

After the Supreme Court declined to hear the appeal, Free Press lawyer Jim Fink said that the lawsuit was part of a “two-pronged attack” for more university transparency. The other prong was to get the Legislature to put a constitutional amendment on the ballot.

Since then, McBroom has introduced legislation several times to put a constitutional amendment before voters.

McBroom’s latest effort was referred to the state Senate Committee on Government Operations, chaired by Democratic Senate Majority Leader Winnie Brinks.

It’s unclear why it hasn’t had a hearing. Brinks, D-Grand Rapids, did not respond to several inquiries from Bridge Michigan.

State Sen. Jonathan Lindsey, R-Coldwater, said the Government Operations Committee is essentially a “graveyard” for proposed legislation. He supports more university openness, citing the lack of transparency by universities about vaccination policies during the coronavirus pandemic and MSU’s controversial ethics policies that some say reinforce trustee obligations but others call a tactic to silence opposition.

“We need to give people more access to how decisions are made,” Lindsey said.

State Sen. Veronica Klinefelt, D-Eastpointe, has served on the local school board, city council and county commission. She became a co-sponsor of the legislation to explicitly require universities to adhere to the Open Meetings Act because she has been subject to that law and has always viewed it as a way of building trust with the public.

“When folks know that everybody is watching them, they tend to behave differently,” Klinefelt said.

McBroom’s term in the Senate is limited to Jan. 1. Klinefelt said she might look at re-upping the issue next term if it doesn’t pass the Legislature this time. But she knows a constitutional amendment is an uphill battle.

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