UNC-CH’s vote to hire a new provost wasn’t transparent at all. Was it also illegal?
A UNC-Chapel Hill hiring process that already was criticized for a lack of transparency resulted in a Board of Trustees vote that may have happened illegally — and second vote to fix the first.
Campus trustees approved the hiring of professor Chris Clemens as the new provost, the university’s top academic official, on Thursday. The board met remotely to discuss and vote on personnel matters, but they did not make clear — either in the meeting or the board agenda — that they were voting on the new provost. They never mentioned the word “provost” or “vice chancellor,” nor did they refer to Clemens by name.
Instead, they voted on “action one” and “action item two and three as a package” after deliberating the personnel actions in closed session.
And it wasn’t until six hours after the vote that the university announced Clemens as the new executive vice chancellor and provost.
Such an unusual voting procedure violates North Carolina Open Meetings Law, according to attorney Mike Tadych, who represents The News & Observer and other news outlets in First Amendment and open government cases.
“You’re not allowed to vote by reference if people can’t figure out what you’re voting on,” Tadych said.
And in this case, people attending the meeting would have no idea which vote, if any, was about the provost, he said.
“It’s unequivocally an illegal vote,” Tadych said.
Days later, the board unexpectedly voted again for the UNC-CH provost and salary adjustments for other top administrative positions, clarifying what each vote was for in the agenda and at the meeting. The meeting followed media attention and legal scrutiny of the odd, secretive process.
Board Chair Dave Boliek called the emergency meeting Tuesday morning “to immediately end any further attempts to challenge the validity” of Clemens’ appointment, he said.
“The board has been unfairly accused of violating the law by not revealing all details of the nature of the personnel action at the time of the votes,” Boliek said at the meeting.
He said the accusations have “unfairly stained this board process and this board and has created unwarranted speculation about the validity of the appointment.”
Lack of transparency
The original vote came days after UNC-CH Faculty Chair Mimi Chapman wrote an op-ed in The Daily Tar Heel highlighting the lack of transparency in this controversial search process. She said trustees and UNC System leaders had pressured Kevin Guskiewicz to make a particular choice.
Chapman said the board not being open about what they were voting on isn’t the most concerning part of this situation.
But it’s another example of trustees making people wonder what’s really going on, she said.
“It’s part of a pattern of doing things in ways that they’ve never been done before for reasons that no one understands,” Chapman said.
‘No intent to hide anything’
State law prohibits members of a public body from deliberating, voting or taking action on “any matter by reference to a letter, number or other designation, or other secret device or method, with the intention of making it impossible for persons attending a meeting of the public body to understand what is being deliberated, voted, or acted upon.”
The only exception is if the public has copies of an agenda that is “sufficiently worded” in a way that people can understand what’s being voted on.
Board of Trustees Chairman Dave Boliek defended the vote, saying people could have figured out what was going on, even though it wasn’t spelled out.
“It was not impossible for anybody to know what we were voting on. And that’s the standard,” Boliek said. “We certainly had no intent to hide anything.”
Boliek also said the board could’ve approved this hire by way of email ballot, and no one would have known about it unless they went to the chancellors office and asked for a compilation of emails. He said he held the meeting with a roll call vote on the items and that the university lawyer in the room advised him that this was a fine way to do it.
Boliek said he would’ve announced the hire during the meeting but Chancellor Kevin Guskiewicz wanted time to craft and send his campus message, so the board honored that request.
Still, Guskiewicz did not send a message about the hire until after 6 p.m. — about six hours after the votes were cast and no mention of what or who was voted on.
There were still administrative tasks to complete before Clemens’ appointment to provost was finalized and multiple campus messages were drafted and approved before the official announcement could be made, according to the media relations team.
‘Done in secret’
Personnel matters are discussed in closed session, but it’s unusual not to publicly disclose the items that a board is voting on after that discussion. Boards can vote on a group of action items without explicitly naming or discussing them, but those items have to be identified on the agenda.
In an email, the university media relations team said the board’s votes at the meeting “represented action on personnel matters clearly noticed in the agenda.”
But the agenda just described an employment contract and did not say what the position was. The media team also said the board “regularly takes steps to protect confidential personnel information when conducting its business. “
Tadych said the way the trustees conducted this meeting and the vote doesn’t meet the spirit of the state Open Meetings Law at all.
He argued that the provost vote is still not legal because the board acted by reference without making it clear what they were voting on. If someone challenged the action under the open meetings law, the board’s action could be voided or declared illegal by a judge, even with the redo vote, according to Tadych.
“This is the person who sets the academic course for the entire university,” Tadych said. “It just strikes me as problematic to have that done it secret.”
This story was originally published December 13, 2021 at 4:14 PM with the headline "UNC-CH’s vote to hire a new provost wasn’t transparent at all. Was it also illegal?."
