BSU trustees debate behind closed doors

MUNCIE — The Ball State University board of trustees voted 9-0 on Jan. 25 to accept the resignation of President Paul Ferguson.

That’s the way the board’s votes seem to go all the time, which, according to one expert, raises a red flag.

“There is nothing reassuring about a series of completely unanimous votes without dissent,” says Michael Poliakoff, vice president of policy at the American Council of Trustees and Alumni (ACTA). “The academy, of all places, needs to be a model of the importance of robust public discussion and dissenting opinions, all the way from the board down into the classroom. This is not a private corporation, and it needs to exemplify these issues of public discussion and transparency.”

Ball State’s trustees tell The Star Press they get into debates/arguments all the time when they meet behind closed doors in executive session; they just don’t bring that friction with them to their public meetings.

The board is under scrutiny from the press, faculty, students and others because of its refusal to explain why its president, who was well liked on campus, resigned after only 17 months in office. There are indications the resignation was forced.

One student who organized a protest told board members their lack of transparency has made them “illegitimate.” Faculty members have written letters demanding that the board resign and calling the secrecy “appalling” and “seriously damaging”  to the institution. A draft resolution being considered by the Faculty Council says the board “should never have agreed to forfeit the taxpayers’ right to know how their money is being spent.” The board is paying Ferguson one year of his base salary, $450,000, plus two months of paid sabbatical to leave town. The terms of the severance package require mutual confidentiality and non-disparagement.

In May of 2013, the trustees voted 8-1 to ban smoking on campus, including designated outdoor smoking areas, after hearty discussion. Trustee Tom Bracken was the lone dissenter, saying, “The Libertarian in me forces me to vote no.” President Jo Ann Gora also weighed in, arguing that smoking should be permitted in football tailgating areas.

But such debate/divided votes at board meetings are rare, according to associate professor Amy Harden, chair of University Senate, who says she has witnessed some debate and discussion at board committee meetings, which are open to the public.

Professor Dave Pearson recalled “fair, honest and open discussion” at board meetings when he chaired University Senate. “Items that I brought to the board were 9-0 in favor of those items,” he added.

But professor Eric Kelly, also a former Senate chair, says, “It appears to me — and long has — that the board members have their serious discussions outside the public eye. I cannot believe that they all agree on everything from the outset. There must be debate/discussion in executive sessions or by email or phone outside the meetings, allowing them to vote unanimously when they come together. The only other interpretation of continuous unanimous votes is that they simply rubber stamp proposals put before them by the administration or board leadership. Neither of these interpretations is consistent with what I would consider a strong board.”

‘Pounding the tables’

Longtime trustee Hollis Hughes Jr., who joined the board in 1989, has never heard of a board of trustees being graded or judged based on how often it votes unanimously. “First of all, I am not aware of any criteria like that to assess boards in or out of state,” he said. “I don’t understand any concern about unanimous votes … We don’t have to get at each other’s throats to have opinions and share concerns. If there are concerns, they can be addressed without resulting in contention and people pounding the tables.”

One of the metrics ACTA uses to assess whether boards of trustees are caretakers of the public interest is whether items — for example tuition increases and budgets — brought by the administration to the board were ever rejected, and whether action items ever receive dissenting votes.

“Both criteria are designed to assess whether board members are asking questions and engaging issues thoughtfully as opposed to simply ‘rubber-stamping’ administrative and staff recommendations,” ACTA said in a report card on public higher education in Minnesota.

ACTA is a conservative, non-profit group that advocates for a greater role of trustees in university decision-making. ACTA’s Poliakoff is a Yale University graduate who went on to study at Oxford University as a Rhodes Scholar before earning his doctorate in classical studies at the University of Michigan. He has been invited to speak to boards of trustees at the Indiana Trustees Academy, a continuing education initiative of the Indiana Commission for Higher Education, the governor’s office, the Indiana Chamber of Commerce and the Lumina Foundation for Education.

It’s not a bad reflection on trustees to engage in public debate, any more than it’s a bad reflection on the Supreme Court that there will be differences of opinion, Poliakoff said. If the BSU trustees always make unanimous decisions, “I would say the process is not working,” he said, just like the process would not be working if the Supreme Court always ruled unanimously.

“The rubber stamp is not a reassuring sign of a board that is engaged and willing to bring serious issues out into the public where they belong,” Poliakoff said. Trustees can be loyal to the state, loyal to their institution, and still have differences of opinion that will be reflected in their votes, he added. “The thing that one looks for in a really strong board is that it’s not going to be afraid simply because it’s a public meeting to air vigorous dialogue and dissent. Democracy thrives on dissent.”

Other metrics used by ACTA include easy public access to the names and contact information of board members; frequent board meetings; attendance at meetings by board members; a board of at least seven and no more than 15 members; periodic review of policies; board training/professional development; transparency of board actions; a functioning committee structure; close involvement in presidential searches; regular evaluation of presidents; and development of a long-range plan.

While Ball State trustees ask plenty of questions during their public meetings, there is a shortage of deliberations and opinions. However, there is “vigorous back and forth debate on those issues that the board is allowed to discuss in executive session” says Dustin Meeks, the student member of the board. Those issues include personnel matters, litigation, the financial health of the university, and long-range planning usually involving acquisition of real estate, he said. Labor negotiations also show up on the agendas of executive sessions.

“Some executive sessions are pretty roof-raising,” says trustee Frank Hancock. For example, whether or not to build a new Ball State hotel and conference center in The Village was “a pretty volatile issue,” he said. It’s “probably accurate”  that there is a lack of dissenting opinions during board meetings, he added. That doesn’t mean there aren’t any. If something is going to pass, “unless you really want to make a stand you probably go along with the majority to show the board is united as opposed to showing you are divided,” he said. Dissenting votes in public could lead to board factionalism, he said.

“I think there is plenty of debate and conversation and clarification and understanding that goes on in executive session,” said trustee E. Renae Conley. “So there is no lack of people speaking up and having a debate … even though a final vote on a particular issue may be unanimous. I am more than comfortable sharing my perspective. I’m not a person that holds back when I have an opinion on something.” She is confident that “there isn’t a group think at all.”

Executive sessions are where “a lot of the more controversial” issues like personnel matters and litigation are addressed, she added.

“Much of the controversy or dissenting commentary occurs in executive session,” trustee Wayne Estopinal said. “We don’t vote in executive session but we have that robust discussion privately and everyone presents their position. I am one of the most dissenting voices on the board. At times, that puts me at odds with the other trustees, but I don’t worry about that because … I am the one who has to look back on my service and say I put my viewpoint forward. I am not anyone’s yes man.”

Like Hancock, Estopinal sees nothing to be gained by airing dissenting opinions in public. “We’re not running for office,” he said. “We don’t have to create sound bites. I don’t think that serves much of a purpose.”

Indianapolis attorney Rick Hall, chairman of the board, says, “By the time we vote on an issue it’s typically been discussed either through the university governance process (University Senate) at length or in committee meetings. As you know, two years ago we set up a committee structure that allows for much more debate to occur in public.” In addition, major issues like increases in tuition and employee health care are not voted on during the meeting at which they are introduced. That gives trustees more time to research those issues before voting on them at the next meeting.

When Gora was president, “a lot of stuff we would not see until the time it was ready to vote on it, God love her, it was crazy,” Hancock said.

“We’ve made a conscious effort to be more transparent,” said Hall, who is open to suggestions on how to become more transparent and who encourages faculty, staff, students, taxpayers and others to attend board meetings. It’s rare for any of those groups to attend either meetings of the board or meetings of the board’s committees (audit/compliance, academic/student affairs, and finance/facilities/planning).

Regarding closed-door meetings, Hall said the board is “very conscious of the topics that can be discussed in executive session.” The board meets in executive session as often as it meets publicly. The committees also meet in executive session.

‘An honor system’

How does the public know that all of that debating going on in private meetings doesn’t stray into public policy issues?

“It is indeed a bit of an honor system,” says Luke Britt, Indiana Public Access Counselor. “For some local boards, an independent office holder — clerks — will be the secretary of the executive session so there will be an impartial minute-taker to guarantee propriety. This isn’t the case with many other governing bodies, however. In any case, with any kind of board, there needs to be an attested certification from either a secretary or an authorized board member that the only matters discussed during the executive session were the subjects authorized by statute and what was noticed. This goes in the board’s minute book and is available for public inspection.”

Hall says the secretary of the board of trustees provides those certifications.

Josh Wyner, director of the college excellence program at the Washington, D.C.-based Aspen Institute, told The Star Press: “Extreme caution in communications regarding employment matters is very common, including when a president resigns after a short tenure. Boards are generally reluctant to air their grievances in such situations because they want to be fair and kind to the president departing, may have contractual obligations to maintain confidentiality, and believe that being openly critical may hinder their ability to recruit and hire another president, already a challenge when the last president left so quickly.”