By Sara Ganim
September 13, 2020
Below is a transcript of episode 6. We encourage you to listen to the episode. It was written to be heard, not to be read.
Sara Ganim narration: It’s been said that journalists report the first draft of history. Certainly, it is true that reporters witness a lot of stuff before the rest of the world knows about it. And a lot of what we see does not immediately make it into news reports. Sometimes notes stay in our reporter notebooks, or in the margins of our brain until one day, something happens that makes those observations relevant. That’s kind of how this episode happened. This wasn’t something originally on our list of areas to investigate. And so, unlike most of the other episodes, where lots of open records requests helped us figure out where there are gaps in data, this episode is not like that. Instead, it came about in a conversation with one of this country’s top investigative reporters. She has uncovered some of the most important stories in higher education in the last several decades.
Sara Ganim: So how has it been going?
Paula Lavigne: You know, I’ve been doing a mix of stories related to COVID-19.
Sara Ganim narration: Paula Lavigne is a reporter with ESPN’s enterprise unit. And initially, I called her to talk to her about privacy rules in Title IX investigations, something we’ll get into a bit later in the season. But as we were talking, she said.
Paula Lavigne: They made reference to the portal.
Sara Ganim narration: This thing that she’d witnessed several years ago while reporting on a story about university contracts was filed away in her reporter brain.
Paula Lavigne: And he was sort of laughing, he said we have ways of keeping that stuff away from you. You being the media. And I’m like, “What exactly do you mean?” He was being very coy, but saying, “Well, we don’t really have possession of it,” in the sense that we actually have it, that we could release to you.
Sara Ganim narration: And when she recalled it to me, it immediately triggered my reporter brain to sift through my files. “Of course!” I thought, “of course this makes so much sense.” This is how universities keep big investigation findings under wraps like at the University of North Carolina a decade ago, the largest cheating scandal in the history of NCAA sports. So many documents never surfaced. Of course that was happening. And as Paula pointed out, it’s now also happening at North Carolina State.
ABC 11 News: “Amid the investigation.”
Sara Ganim narration: Where possible recruiting violations led to an FBI investigation.
News Observer: “NC state received notice of allegations from the NCAA this week.”
Sara Ganim narration: And where the local newspaper, the News and Observer, recently wrote about how they could not obtain certain emails and text messages that would otherwise be public record, because.
Charlotte observer reporter: Many documents were only accessible on a protected NCAA portal.
Paula Lavigne: NC State is claiming, “Well, we don’t actually possess this information. We allegedly can’t download it. Can’t copy it. Can’t print it off. So, therefore, we have never taken possession of it, and therefore, it’s not public record.” I, and I think obviously other media would argue that, that’s just not the case, it’s disingenuous.
Sara Ganim narration: Basically, the NCAA’s investigative documents are shared with the university only through a secured portal and so when reporters asked for them, NC State says
Paula Lavigne: “Well, even though we have access to them in this portal, we don’t technically have them. So we can’t give them to you.”
Sara Ganim: So NC States is able to see them without taking possession of them. And the benefit of that is they get to know the information without having to share it with the public?
Paula Lavigne: That’s their claim.
Charlotte Observer reporter: School officials entered into a “non-disclosure agreement” involving records in the portal, even if those records came from the university.
Paula Lavigne: They’ve asserted that access to this portal is subject to a nondisclosure agreement. And therefore, that also prevents them from releasing it.
Sara Ganim narration: This is pretty clearly a violation of open records law.
Charlotte Observer:They’ve collaborated with the NCAA to conceal potentially damaging information behind the confidentiality agreement they say forbids school officials from releasing records, potentially including public records that the university supplied to the NCAA
Sara Ganim narration: This is an excerpt from the local newspapers’s column
Charlotte Observer: It’s a sneaky way to hide bad behavior
Sara Ganim narration: But never-the-less, it’s happening more and more. It happened at Florida State in the early 2000s, when tutors were accused of giving improper assistance to athletes. The Associated Press sought the documents through a public records request and the university tried this method to hide it, but the AP sued and in that case they actually won. They broke through the portal.
Paula Lavigne: It’s just an example of how these entities just keep trying to find new ways to hide information. And they benefit from the fact that the laws haven’t caught up to that.
Sara Ganim narration: From the University of Florida’s Brechner Center for Freedom of Information, I’m Sara Ganim, and you’re listening to an episode of ‘Why Don’t We Know’ the podcast that dives deep into data and comes out with real stories. Here’s a rhetorical question: how do you go searching for something that is designed to be hidden? Something that is inherently secret? After I first talked to Paula Lavigne, this question bugged me for weeks. How on Earth am I going to find examples of times where public universities used these portals to hide documents, if the whole reason they are hiding them is so that we cannot find them? I can’t really file a FOIA request asking for “times you used a third-party to hide documents that are supposed to be public.” Yeah that would go over really well.
Paula Lavigne: They would just simply respond back saying there are no responsive records.
Sara Ganim: And we would never know.
Paula Lavigne: And you never know.
Sara Ganim narration: So, I went to my research team, and we put our heads together. Thanks to a recommendation from our Executive Producer Frank LoMonte, we found a pretty interesting and really relevant example of the use of these portals, which isn’t just happening at a handful of schools that have scandalous investigations. No, this is a lot of schools. Pretty much all of the ones that have presidents. So yeah, all of them? It turns out that this is probably the most prevalent abuse of these portals and it happens when a university is conducting a search for its next chief executive. It used to be very common for this to be an open practice. But in the last several years, that’s shifted. And now it’s much more common to conduct these presidential searches in secret. The Brechner Center’s own research found that more than 70 percent of recent presidential searches have been closed. Meaning no public vetting process. No one knows who the new leader will be until the ink is dried and the moving trucks are loaded. You might imagine that this isn’t sitting well with faculty, students and taxpayers who are funding the bill for these high-paid public executives. That’s what happened recently at the University of Colorado when a conservative former congressman was named president in a secret search. His voting record on gay marriage then became a contentious issue with students and faculty. So recently, people have started suing to try to get the resumes that are being considered in these secret searches so they can see the finalists before someone is named. It makes sense. Public university, public document, resumes should be available to see. But that’s where portals come into play.
Sara Ganim narration: Hey Camille, are you ready?
Camille Respess narration: Yes I’m ready.
Sara Ganim narration: Why Don’t We Know reporter Camille Respess worked on this episode with me.
Sara Ganim narration: Where are you recording right now?
Camille Respess narration: I’m actually back at the University of Florida in the College of Journalism and Communications in our Newscenter.
Sara Ganim narration: So, you talked to a research duo that has spent a lot of hours digging into presidential searches.
Camille Respess narration: Yes, they worked together at George Mason University tracking this increasingly secretive process.
Jim Finkelstein: We estimate today that probably 80% or more of presidential searches are secret
Camille Respess narration: That’s Jim Finklestein. He’s retired from George Mason but had been the Vice Dean of one of the schools of policy and government.
Jim Finkelstein: If you went back 15 years, public university presidential searches, probably none were secret. This is a new phenomenon. As reporters and the public press more and more for transparency, the search firms press more and more for secrecy.
Camille Respess narration: They pin the push for secrecy on private search firms who are hired by public universities to conduct searches and bring them to best candidates.
Judith Wilde: The search firms have been working very hard to assure that they get as much work as they can.
Camille Respess narration: That’s Judith Wilde, she’s a professor at George Mason, and Jim’s research partner.
Judith Wilde: 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.
Camille Respess narration: But keeping all of this under wraps requires some legal manuervings, some creativity, because the resumes of candidates qualify as public records.
Sara Ganim narration: Unless, of course, the university doesn’t have possession of them.
Judith Wilde: 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. They collect their CVs. They collect the letters.
Camille Respess narration: As Jim explains, search firms will say to a university.
Jim Finkelstein: If your state allows it, we’ll own the data. People won’t apply to your university. People will apply to our company. Then, we’ll do the initial sorting and we will only bring you the most qualified candidates for your university to review.
Sara Ganim narration: The portal.
Camille Respess narration: The portal.
Judith Wilde: 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.
Camille Respess narration: And there are examples, going to pretty extreme lengths.
Judith Wilde: Some of the search companies are now putting information onto iPads. Then they go visit the local search committee and say, “Here’s the information.” They hand around the iPads, let people read it, and then pick up the iPads again. So again, there’s nothing the local search committee has in their hands that they could share with anyone.
Sara Ganim narration: Camille, what’s the reason for this push for more secrecy?
Camille Respess narration: That’s a good question. It’s not entirely clear if it’s the universities that are asking search firms for more secret searches or if it’s the search firms that push for it in order to make themselves more valuable to universities. We’ve anecdotally seen evidence to support both theories, but what is clear, is that there’s a lot of evidence that secret searches are not in the best interest of the public. Judith gave an example.
Judith Wilde: A couple years ago in Oklahoma, there was a search at the University of Oklahoma, the Flagship University in Norman and Oklahoma City, which is now maybe 20 miles away, there was a search for a president of a smaller private school, private college.
Camille Respess narration: Judith says the private school opted for an open, public search. And the public school opted for a private, secret search.
Judith Wilde: Both used the same search firm. The search at the University of Oklahoma was completely private. That person has failed. After 10 and a half, 11 months in the position, he retired. Okay, a brand new president. A brand new president doesn’t retire within a year.
Jim Finkelstein: 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.
Judith Wilde: Their current job.
Jim Finkelstein: Their current job. Here’s why that isn’t true. First of all, we know from data that’s published by the American Council on Education, which does a periodic study of the university presidency, that in any given year of the university presidents that are appointed, fewer than 25% of them are coming to their new presidency from having been a president. Along with that, the people who do become presidents, a provost, a dean, a vice president, they’re all looking to get promoted to the next job and they rarely get promoted at their university. Everybody knows they’re in the job market.
Camille Respess narration: I think it’s probably also important to mention here, that no other job search at a university is conducted secretly. If you are applying for a position as a dean, provost, vice president, all those candidates are part of open, competitive, public searches, and no one is complaining that those candidates are retaliated against for seeking promotions. Further, our own research backs up what Jim said, overwhelmingly. We found that candidates that were part of open searches still got to keep their jobs with no retribution. And many went on to get other executive-level jobs elsewhere.
Sara Ganim narration: It sounds like the more plausible reason is that these search firms are worried that they will lose candidates, and therefore income.
Camille Respess narration: As Judith and Jim explained, it protects the privacy of presidential candidates and these are people who are about to take very, very public jobs with very large public responsibilities.
Jim Finkelstein: I won’t name the institutions or the individuals but there are two new university presidents this year at very substantial public universities, both of whom we know were hired through secret searches. Both of them are named parties, defendants in discrimination lawsuits.
Judith Wilde: Is that what you want for a new president?
Jim Finkelstein: We don’t know whether the claims have any validity, right? That’s ultimately for a judge or a jury to decide. We know that people who are in leadership positions often get accused of many different things but for a case actually to make it into the courts is something that faculty might want to know about. In one case, this president was accused of discriminating against a gay faculty member and denying that person tenure on the basis of their sexual orientation. That’s a pretty big allegation. 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. The other case is a similar kind of case again, a claim of gender discrimination for a faculty member who was disciplined for something. Well, if someone’s going to discipline a faculty member, faculty members care about that a lot. So, not being able to meet these candidates and know who they are, because once you find out the name of the candidate, there are all sorts of databases that almost any university faculty member can go into any young reporter or journalists can go into and learn very quickly whether or not they’re subject of a lawsuit, whether or not they have created a controversy on their campus. But if you don’t know who they are, you don’t know whether the search firm is going to do that kind of deep dive on a candidate and whether or not the search firm is going to say at the very end, “Oh, by the way, we just found out something about her that you know that she had your three complaints from students against her but we’ve looked at those now and she’s our only final candidate and we’re convinced that that was a long time ago and it’s not a problem now.” Well, the search, of course, doesn’t want to start the search over again, because that will cost some money.
Sara Ganim narration: Do these search firms do adequate background checks?
Camille Respess narration: According to their research, only 51 percent of the contracts between universities and search firms say that the search firms will call references for these candidates. Only 43 percent say they will call references not listed by the candidate themselves. Only 40 percent say they verify that the degree the candidate says they hold that they actually really hold it.
Judith Wilde: That certainly helps any candidates who have something in their background that they’d rather not get out. If you know the search firms don’t do a lot of due diligence and that they want to have a secret search, then you may be able to get away with it but once you’re named, your new faculty are going to start searching and as Jim said, 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.
Sara Ganim narration: But what about the search committee at the university? Can’t they fill in the gap and do a better job at vetting these candidates?
Camille Respess narration: Maybe. But think about it. You’re on a search committee. You go into a room, look at an iPad full of resumes, and then hand it back after a set amount of time. It doesn’t seem possible that you could have the same quality of deliberations by just glancing at documents on an iPad. You can’t keep them or review again later. Plus, as Jim explains.
Jim Finkelstein: They don’t have any ability to go online, do a Google search, do any other kind of search that you want. In fact, many of these confidentiality agreements, you certify that you won’t do that, that you won’t do your own due diligence. You won’t ask any questions of other people who might know this candidate because they’re asking that you only trust the information that is given to you by the search firm.
Camille Respess: What’s the point of that? Why are search firms asking people to do that?
Judith Wilde: That’s the million dollar question. We can’t answer, we don’t know.
Jim Finkelstein: We don’t know. Let’s say there are 400 plus presidential searches a year and those searches maybe $150 to $200,000 each because the presidential search industry becomes a pretty substantial industry in and of itself. This issue of private interests versus public interests is really the major question for these public institutions today. 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.
Sara Ganim narration: What do the search firms say in response to all of this?
Camille Respess narration: I reached out to about a dozen of them, only one person agreed to talk to me for this podcast, and that is Jan Greenwood. She’s the partner and co-owner of Greenwood Asher Executive Search and Associates, which for almost 30 years has conducted university searches at major universities, including the last three searches here at the University of Florida.
Sara Ganim narration: And what did she say about all of this secrecy?
Camille Respess narration: Well, right off the bat, she wanted to reframe things a bit.
Sara Ganim narration: What do you mean?
Camille Respess narration: I was asking her about secret searches.
Camille Respess: So, do you have clients who ask to do open searches and then others who asked to do the secret or closed searches?
Jan Greenwood: There may be some confusion about the terminology.
Camille Respess: Okay.
Jan Greenwood: A search that is not open is one that is confidential. The candidates are confidential until the end. A search that is open, the candidates may be public knowledge from the beginning of the search or somewhere in during the process of the search.
Sara Ganim narration: Confidential sounds a little better than secret, but the outcome is the same.
Camille Respess narration: Essentially, yes. However, she was pretty adamant that her firm, at least, does not incentivise these confidential searches. She said that’s totally up to the client.
Jan Greenwood: And that usually is governed by above the culture and tradition in the university, as well as state regulation. I think those are the key things to keep in mind.
Camille Resspess narration: And she doubled down on this idea that somehow an open, public search can deter the best candidates.
Jan Greenwood: There are examples since 1992 where presidents of universities have looked at other presidents and their name became public, and they were fired for looking at another job. 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 have driven 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.
Camille Respess narration: But she also acknowledged that open searches have benefits.
Jan Greenwood: Now the advantage to a public search that does not have an element of confidentiality is obvious, people in higher ed feel very good about being able to meet and greet candidates. And that’s something that universities need to consider. But there are pluses and minuses to each approach.
Sara Ganim narration: Let’s not lose sight here. University presidents are public executives of billion dollar entities. And not only are they overseeing millions of taxpayer dollars, they are also paid in taxpayer dollars. In many states, they are the highest paid public executive. And as Jim told Camille.
Jim Finkelstein: There is no public executive who was appointed so secretly. There’s no cabinet member in the state executive branch. There’s no Supreme Court judge. The elected officials go through all sorts of public vetting on the campaign trail. Why is it that a university president is the only senior public executive who can be appointed secretly? Transparency is important in order for these public executives to carry out the public trust, and you can’t carry out the public trust if your appointment was done in the shadows. 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.
Sara Ganim narration: This just happened this 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, 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, at the University of Wyoming, when a president lasted less than 5 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.
Jim Finklestein: You’re paying these people a million bucks a year. The public should have a say in that and it shouldn’t be left just to a small group of people who are letting a for profit company do most of the work on their behalf.
Sara Ganim narration: Jim’s comment, that cultural secrecy does have a top-down effect. We’ve seen that play out over and over again. For example, let’s circle back to the beginning of this episode, when I was talking to ESPN reporter Paula Lavigne about instances where portals are used to hide scandalous behavior. The most relevant current example is probably at North Carolina State.
News Observer: NC state among other schools are involved in a federal investigation into the NCAA.
Sara Ganim narration: Where as we talked about earlier.
News Observer: “Received a request in January to turn over records.Many documents were only accessible on a protected NCAA portal.”
Sara Ganim narration: A federal criminal investigation is underway into recruiting violations. The allegations include a $40 thousand dollar payment to secure the 2015 commitment of a former five-star basketball guard named Dennis Smith Jr. That’s not an insignificant charge. And the fact that the university is being secretive about the whole thing, attempting to hide communications that should, by law, be public documents, well, that might not be so surprising when you consider North Carolina State’s Chancellor was one of the roughly 70 percent, who was hired in a secret search.
WRAL: The top candidate to lead NC state is a man who is described as a man who knows plants and people. Dr. Randy Woodsen spent the last 25 years at a university who mirrors NC State’s missions.
Sara Ganim narration: William Randy Woodsen, had been the Provost of Purdue, when in 2010, it was announced he would become NC State’s chancellor. The other candidates were never made public. This whole thing speaks to a greater cultural problem in higher ed. State universities were meant to be accessible. They’re supposed to be the “people’s schools.” We’re already seeing a move away from that mission, as tuition prices creep higher and make public education less attainable for regular people. Now it seems like they are inching father away from being truly “public” too. Using portals as a way to shield information that should be public, this isn’t a tactic that only public universities are guilty of. This is something we’re seeing more and more across government agencies. A lot of the examples have to do with economic development. So, times when cities strike deals with big companies like Amazon to bring in jobs but they don’t want to make public the details of those deal, like the tax breaks and other incentives. This happened recently in Minnesota, where city officials have been accused of using a cloud-based file sharing system to hide data. The program they used is called “The Box.” Fitting name. But it’s not always so obvious. Sometimes, like Paula Lavigne has witnessed.
Paula Lavige: They file things through the NCAA portal.
Sara Ganim narration: It’s the NCAA. In a case we found in California, it was a brokerage firm. In another case, in Pennsylvania, it was a private health plan. 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 the university has the right and has the access to the documents, and just because 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 and don’t actually have possession. Even though Reuter’s attorney argued “constructive possession” the judge sided with the university and kept them secret. A few years before that, 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 this “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 by keeping these records with the health plan.”
There’s one more major “portal” that we haven’t talked about but that’s pretty common. In fact it’s estimated that 75 percent of public universities in the United States have and use these as a way to create a place to stash information that they’d rather not have public.
Nonprofit foundations are typically used as a fundraising arm of the university. A place where donors can send money intended for the institutions but in many cases — anonymously. Private influence for a public place, That’s next time, on Why Don’t We Know.
This episode was written and produced by me, Sara Ganim.
With additional reporting by Camille Respess.
The associate producer is Tori Whidden.
This episode was edited by Amy Fu.
Music for this episode was composed by Daniel Townsend.
Audio mixing was done by James Sullivan
The executive producer is Frank LoMonte.
‘Why Don’t We Know’ is a production of the Brechner Center for Freedom of Information at the University of Florida.
A special thanks to the Hearst family foundation for proving the grant money that supported this reporting.
For more information, please visit our website at www.whydontweknow.org