By Sara Ganim and Camille Respess
At North Carolina State, it’s the NCAA. At the University of California, it was a brokerage firm. At the University of Pittsburgh, it was a health plan. For hundreds of other schools, it’s private search firms.
More and more public universities are using private “portals” to house documents that otherwise would be public — shielding them from open records laws.
Instances hinting at this practice have surfaced during scandal, investigations, and in lawsuits. But it’s hard to track how widespread this has become, since the practice is inherently secret.
It’s designed to be hidden.
However, Why Don’t We Know reporters, have found that one of the most prevalent uses of these portals happens when universities are in search of a new chief executive.
It used to be very common for presidential searches to be open, meaning, the faculty, students and the general public would know who the final candidates were as they were interviewed and before someone was selected.
But in the last several years, that’s shifted.
Secret searches have become the more common practice, even at public institutions, where resumes and other documentation of the search should be available via public records requests.
And that’s where the portals come in.
“In many cases, the contracts for a search, the contract between the university and the search firm specifically state that the search firm owns the data,” said Judith Wilde, a professor at George Mason University who has been researching secret presidential searches. “They collect their CVs. They collect the letters.”
Wilde says that search firms — private companies hired by universities to find and vet candidates — have been pushing for more secret searches in the last 15 years.
“The search firms have been working very hard to assure that they get as much work as they can,” Wilde said. “They’re convincing the universities and colleges that the only way to get the best candidates is to go through a search firm and to make it a secret search.”
The Brechner Center’s own research, using publicly available information over the last 20 years, found that about 74 percent of searches were secret. Although some estimates are even higher.
“Probably 80 percent or more of presidential searches are secret,” said Wilde’s research partner, Jim Finkelstein. He’s retired from George Mason, but had been the vice dean of the school of policy and government.
“As reporters and the public press more and more for transparency, the search firms press more and more for secrecy,” he said.
iPad search committee
Some of the most eyebrow-raising cases, Wilde and Finkelstein say that search firms put resumes on iPads or other tablet devices, hand them to university search committee members and then take them back after a set amount of time, ensuring that no one else ever has possession.
“They hand around the iPads, let people read it, and then pick up the iPads again. Again, there’s nothing the local search committee has in their hands that they could share with anyone,” Wilde said. “There are frequently nondisclosure agreements that the local search committee needs to sign. Some of those are quite egregious, threatening loss of tenure, threatening jail, if you ever, ever, ever say a word about this search.”
The results can be incredibly damaging.
Secret searches often erode faculty trust. They prevent any wrinkles in a candidate’s past from being aired before the ink is dry and the moving trucks are loaded.
“A couple years ago in Oklahoma, there was a search at the University of Oklahoma, the flagship university in Norman and Oklahoma City,” Wilde explained, “Maybe 20 miles away, there was a search for a president of a smaller private school, private college.”
The private school opted for an open search, and the public school opted for a private search.
And the result of the private search?
“That person has failed,” she said. “After 10-and-a-half, 11-months in the position, he retired. A brand new president. A brand new president doesn’t retire within a year.”
Finkelstein said that in the last year, two public university presidents, who have been selected in secret searches, are facing litigation.
“I won’t name the institutions or the individuals,” he said, “… Both of them are named parties, defendants in discrimination lawsuits. … You would think that a faculty would want to know to ask a candidate questions about that case, to make some judgments on their own, whether or not they think that that person’s values are a match for their campus.”
Finkelstein and Wilde’s research found that only 51 percent of contracts between universities and search firms state that the firms will call references listed by the candidates. Even fewer, 43 percent, say they will call references not listed by the candidate. And only 40 percent will verify that the candidate actually holds the degree they say they hold.
“That certainly helps any candidates who have something in their background that they’d rather not get out,” Wilde said. “…but once you’re named, your new faculty are going to start searching and .. in all likelihood, they’ll find things out and then they’ll be a lot to pay for that not-knowing, a lot of distrust.”
Secret search, public executive
So, then, what’s the point of all this secrecy?
“That’s the million dollar question,” Wilde said. “We can’t answer, we don’t know.”
Finkelstein says he believes it all goes back to money — making search firms more valuable.
“Let’s say there are 400-plus presidential searches a year and those searches maybe $150,000 to $200,000 each because the presidential search industry becomes a pretty substantial industry in and of itself,” he said.
However, Jan Greenwood, the partner and co-owner of Greenwood/Asher Executive Search and Associates, says there is another reason confidential searches are important.
“There are examples since 1992, where presidents of universities have looked at other presidencies and their name became public, and they were fired for looking at another job,” Greenwood said. “There are examples of presidents who had major donations agreed to by donors, and when the donors found out they were looking at another position, they would’ve given up the donation. There are examples where presidents were working with their legislators on special funding and legislators found out they were possibly going to make a move, and the legislature held back from doing what was requested until they saw who the next president was. So, it does tend to damage your reputation and your home university.”
Research by the Brechner Center, however, contradicts that. While a few anecdotes may exist, our research found that overwhelmingly, candidates that were part of open searches were not retaliated against. Many went on to get executive level jobs elsewhere.
In addition, there are essentially no other job searches at public universities that are conducted in secret. Candidates applying for positions as dean, provost and vice president are almost always part of open, competitive searches and there are no claims of retribution.
In fact, it’s well-known that people in high levels of academia are seeking to move up the ladder.
“The search firms have created this myth, because there is no evidence to support their claim that you will only get the top candidates if their names never become public because the top candidates, they claim, that their names become public, they are at risk for losing their job,” Finkelstein said.
In addition, data from the American Council on Education says that fewer than 25 percent of presidents come from lateral positions.
And the tradeoff is that often public university presidents — among the highest paid executives in the state, and overseeing billions in taxpayer dollars — start off their tenure under a cloud of secrecy, mistrust, and sometimes scandal.
This just happened, over summer, at the University of Wisconsin, where the lone finalist named in a secret search was forced to take back his acceptance of the position because of a public revolt over his secret hiring.
Jim Johnsen cited “process issues” in his two-sentence resignation letter, and the search committee chairman said it was because the criticism “made it difficult for him to lead the way he had hoped to.”
Another example happened at the University of Wyoming in 2013, when a president lasted less than five months. Bob Sternberg was hired in a secret search, arrived to a skeptical campus, and immediately clashed with faculty. Three deans and five administrators resigned during his short tenure. The whole thing was a big disaster.
“Transparency is important in order for these public executives to carry out the public trust that they’ve been trusted with and you can’t carry out the public trust if your appointment was done in the shadows,” Finkelstein said. “If your appointment was done in the shadows and you were fine with that? People aren’t going to trust you to be transparent when you’re leading them. You lead by example.”
Even Greenwood agrees that transparency has benefits for new presidents.
“Lay people in higher (education) feel very good about being able to meet and greet candidates,” she said. “And that’s something that universities need to consider.”
Finkelstein said it all goes back to private interests versus public interests.
“Search firms, our sense is, they have convinced more and more public institutions that should be protecting the public interest, that the only way to protect the public interest is by protecting the private interests of the candidate, which by the way, also protects the financial interests of the search firm,” Finkelstein said.
There’s a legal term called “constructive possession,” and often it’s the argument made by people who are trying to get documents that are hidden in different kinds of portals.
The constructive possession argument is that since the university has the right and has the access to the documents, the fact that they choose not to take possession of them for secrecy reasons shouldn’t keep them from being made public when someone requests them.
This argument doesn’t always work.
It didn’t work for Reuters journalists who wanted to see how the University of California’s non-profit foundation was investing money. According to California’s open records laws, that’s clearly public. But the university fought the request by saying that the documents were on file with its brokerage firm, and essentially, they just log on to look at them — they don’t actually have possession.
Even though Reuters’ attorney argued “constructive possession,” the judge sided with the university and kept them secret.
A few years before that, the University of Pittsburgh-affiliated hospitals tried a similar tactic, claiming certain documents about administration of Medicaid were housed by a private non-profit health plan, not the state, and therefore, not public.
In that case, the court found that to be a meaningless distinction, saying:
“If this court were to conclude that only documents within an agency’s actual physical possession were subject to disclosure, we believe that public records could be shielded from disclosure by placing them in the hands of third parties. We do not believe the general assembly intended to provide a loophole for agencies to conceal otherwise public records from public view.”
The ruling goes on to say, there is “undeniable access” and the university “does not have the right to evade disclosure of public documents.”
Additional reporting by Tori Whidden and Turner Street.