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Larry Skogen

University officials want to block some records from being open to the public

FARGO, N.D. - The North Dakota University System is moving to exempt internal draft audits and presidential evaluations from the open records and public meetings law.

During the State Board of Higher Education's meeting on Nov. 20, interim chancellor Larry Skogen announced he would seek legislative approval to remove the public's right to access internal audit drafts performed by the university system and university presidents' 360 evaluations.

While Skogen said the legislative proposals are not finalized yet, he asked the education board to approve the system's move to present the draft bills to the Legislature.

"We are rapidly approaching the deadline of Dec. 4 for any type of pre-filing of any kind of legislation," Skogen said during the meeting. "So this is the kind of legislation that we are thinking about currently."

Without discussing the proposed legislation that Skogen outlined, the education board unanimously approved the motion to send those recommendations on to state lawmakers.

Board Chairwoman Kirsten Diederich said she voted to approve the motion because it would give the board the chance to vet any reviews or audit documents. She said the information the SBHE is looking to restrict access to would eventually be released to the public, but only after the system had a chance to vet the information.

In regard to the president's reviews, Diederich said keeping them private would allow people to speak honestly without fear of their comments being made public.

"Our own sunshine laws unintentionally restrict this form of dialogue," she said. "We're requesting this not because we want to hide any results of the assessment but because we need to fully vet the results before we make it public. We just want to have a chance to respond."

Murray Sagsveen, the system's chief of staff and ethics director, said the exemptions to the system's open record and public meetings law are needed in order to allow the higher education board to properly review university presidential candidates and to make sure that unfinished findings in draft audits do not undermine internal investigations.

But the proposal to limit public access to records has some state lawmakers questioning why changes are needed and whether it is the right time to limit the public's access to information from the state's higher education system.

Sen. Rich Wardner, North Dakota's Senate majority leader, said he would hesitate to close records to the public without a very good reason and that he expects there would not be much support for such a bill in the Legislature.

"I would have to hear the reasons why," said Wardner, a Republican from Dickinson. "I would guess most legislators would be very cautious and skeptical of this. I'm guessing."

Sen. Don Schaible, the vice chairman of the Senate's education committee, said with some of the problems that have been seen at universities and the university system in the past couple years, he would be hesitant to vote for less transparency.

"There is kind of a distaste right now or distrust of the state board of higher education and the universities," said Schaible, a Mott Republican.

In June 2013, former Chancellor Hamid Shirvani's reviews of the 11 university presidents the system oversees were released to the public through an open records request, three of which were particularly harsh.

After having his contract bought out by the board weeks before, Shirvani also recommended comprehensive "360 reviews" of University of North Dakota President Robert Kelley and North Dakota State University President Dean Bresciani, saying both served long enough to warrant such a review by an outside entity.

Diederich said 360 reviews would include comments from the chancellor, alumni, lawmakers and university employees.

At the time, then-board member Duane Espegard said the board never conducted such reviews of presidents.

When the reviews were released, several high level administrators at UND rallied around Kelley and urged the board to take another look.

The SBHE then rejected all of the presidents' reviews, citing offensive and unprofessional language. The board also criticized Shirvani for not sitting down with each president and having them sign off on their review, as is the SBHE's policy.

Skogen then redid the reviews for the four presidents who requested it -- Kelley, Bresciani, North Dakota State College of Science President John Richman and David Fuller, president of Minot State University and Dakota College at Bottineau at the time -- but currently, the board is in the process of revamping how it does presidential reviews.

Diederich said the board has been told by several agencies, including the Association of Governing Boards of Universities and Colleges and the Association of Community College Trustees, that it should perform 360 reviews every three to five years.

Sagsveen said if evaluations are confidential and only presented to the higher education board, the board members can better evaluate those university leaders.

"The concept of that is not to sweep anything under the rug. The concept is to better enable the board of higher education to evaluate the performance of the president," Sagsveen said.

Skogen said the secrecy of those evaluations is needed to truly evaluate the presidents.

"All of the consultants we have talked to about doing 360s have said that there has to be some sort of privacy to those evaluations, and so if we are going to have true 360s, would the Legislature work with us on that," Skogen told the board.

Limiting public access to draft audits would bring the university system's open records law in line with the state auditor's office, which exempts ongoing audits from the open records law, Skogen said during the November board meeting.

"The state auditor already has an exemption from open records on working papers," Skogen said. "So we will see if we can get that for the auditor for the university system as well."

Sagsveen said limiting access to draft audits would allow the system to better investigate problems within the university system.

"If the records were disclosable, then it may totally frustrate the investigation or ruin it," Sagsveen said.

Sagsveen said the proposed legislation would not affect audits performed by outside accounting firms. He said the proposed change was only meant to limit access to draft reports conducted by the university system on affiliated institutions -- colleges and universities.

While NDUS's administration hopes to garner support for the changes in the upcoming legislative session, many of the state legislators briefed on the proposals said they generally do not support such changes to the open records law.

Both Sen. Kelly Armstrong, a Republican from Dickinson, said he opposes any bill hiding evaluations for university presidents, who are some of the highest paid employees in North Dakota.

"It's a billion-dollar appropriation every two years," Armstrong said of the money provided to the university system. "I want to see their reviews, and I think everyone should see them."

Armstrong said he would be open to legislation exempting draft audits from open records law. He said he doesn't see a problem with exempting drafts in certain situations, as long as the draft is not a final report masquerading as an unfinished document.

Rep. Corey Mock, a Democrat from Grand Forks, said he sees validity in restricting access to draft audit documents as long as the final product is released to the public. But, in regard to presidential reviews, Mock said he has a lot of questions.

"Any legislation that comes from the State Board of Higher Education is going to be examined with a little more scrutiny by the Legislature," Mock said. "Everything the board does, we will be incredibly critical of their motives. That's not to say these aren't without merit, but there are a few blemishes ... and there's a level of trust that has to be restored between the Legislature."

Mock said he supports transparency but also understands the need for an honest and thorough review process.

Schaible said while he has not seen the proposed legislation, he is generally not in support of exempting information from open records laws, and is even more concerned about limiting the public's knowledge of happenings at universities, because none of the institutions are subject to performance audits by the state.

"Universities aren't even on a performance audit, which I think they should be, and exempting more of their stuff -- hiding it from us -- is not good," Schaible said.

A performance audit would give lawmakers an opportunity to see how money is being spent, whether it is being spent on intended purposes and if the people of North Dakota are getting a value out of the tax dollars that are being spent, Schaible said.

"That's the thing," Schaible said. "They ask for money. We appropriate it and we really have no say in what they do with it. So it's kind of a bad deal."

Schaible said even if he agreed that some records should be exempt, he said now is not the time to remove the public's access to information within the university system.

"Just with all the problems that higher ed has had in the past three, four years or whatever, they need to clean up their act," Schaible said.