IU’s trustees finally own up to their violation of the Open Door Law
They never properly approved a $582,000 ‘consulting’ contract with former President McRobbie. After shifting explanations that did not hold water — as well as misrepresentations and attacks on me by their lawyer — a public vote will occur Friday.
In early May 2021, the IU Board of Trustees approved a contract to pay former President Michael McRobbie more than $582,000 in new compensation from July 1 through December 31, 2021. In return, he would provide “consulting services” to new President Pamela Whitten. I first reported this arrangement in an October article about the presidential search. I explained that the trustees had violated the Indiana Open Door Law by acting in secret outside public view. The story then was picked up by the Indianapolis Business Journal, The Indiana Lawyer, and other media.
IU’s spokesman claimed at the time that the trustees had properly approved the matter in an August executive session. Then, after I filed a formal complaint with the state Public Access Counselor (“PAC”), IU’s general counsel, Jackie Simmons, abandoned that theory. In her own filing with the PAC — a missive whose unprofessional tone and vituperation were so extraordinary that it caught the attention of the Chronicle of Higher Education — she claimed that no public board action was necessary because the chair of the Board of Trustees had exercised “delegated authority.” I filed a reply, explaining how Simmons had misstated law and misrepresented facts.
Now, with the McRobbie payments having almost run their course, the trustees evidently have decided to do what the law required them to do seven months ago: put the matter to a vote in public. The McRobbie contract is listed as an action item on the agenda for their meeting December 3. Presumably the matter will be voted on quickly and without discussion, because the discussion about it took place long ago in secret.
[Update 12/3/21: The matter was approved on a unanimous voice vote with no discussion.]
(Incidentally, it seems unlikely that very much “consulting” is happening between Whitten and McRobbie. In a curious snub, Whitten did not give McRobbie a place on the stage at her November 4 inauguration, despite his being a highly regarded immediate past president and current University Chancellor. He sat in the audience, and I am told it wasn’t because he volunteered to do so.)
The decision to finally bring the McRobbie consulting agreement to a public vote represents an unusual climb-down and admission of error for a Board of Trustees that does everything possible in secret, and for a general counsel with a reputation for routinely taking a stance of maximum confrontation. In essence, the trustees have conceded that they’ve been out of compliance with the open-meetings law, and that their attorney’s and spokesman’s various shifting explanations were bunk.
Why do so now? Perhaps the board (which has several lawyers among its members) lost confidence in the legal advice they were getting from their general counsel. Or perhaps they’re hoping avoid an embarrassing ruling from the PAC that they violated Indiana law. (The PAC has already ruled against IU on a related matter, holding that the general counsel’s office violated the state Access to Public Records Act by unreasonably stalling on the production of documents to I had requested.)
[Update: In December 2021, Simmons was hastily terminated by IU without any public reason being given.]
I sent an earlier draft of this article to IU spokesman Chuck Carney and gave him the opportunity to provide comments or dispute any facts. He did not do so.
The trustees’ habitual flouting of open-meetings law
The state’s Open Door Law is predicated on the principle that “this state and its political subdivisions exist only to aid in the conduct of the business of the people,” and thus that “the official action of public agencies [must] be conducted and taken openly … in order that the people may be fully informed.”
Some people do not get exercised over this kind of thing. But compliance with open-meetings law is part of basic transparency and accountability by a powerful group of public officials — the trustees — whose decisions impact the lives of faculty, staff, and students, and who approve the spending of billions of dollars each year.
Among those who watch the board closely — and my experience goes back 40 years — the evidence has long been overwhelming that the trustees routinely and habitually violate the Open Door Law by discussing important business in executive session, over email, or in other ways outside public view. This fact has been confirmed to me by several past trustees and other participants in these meetings.
The public business meetings — six per year, most scheduled for only an hour — invariably feel pro forma and performative, with little or no meaningful discussion. Decisions obviously have been made, and most questions or disagreements ironed out, in advance.
Consider that this week, the board is scheduled for a one-hour business meeting, and two hours and forty-five minutes of closed executive session. In June there were three hours of executive session for a one-hour business meeting. In October 2020 there were four hours of executive session for a one-hour business meeting.
Given the very limited topics state law allows for executive sessions — primarily litigation, security, real estate transactions, and certain personnel matters — it is implausible that the trustees are spending this much time behind closed doors and not talking about all sorts of other things. Although there are also several hours of public committee meetings each time the trustees gather, these, too, usually feel as scripted and anodyne as the main business meeting.
IU’s shameless misrepresentations about how the McRobbie ‘consulting’ arrangement came to be
IU tried out various explanations for how the McRobbie consulting contract — which documents show was reached in May, with payments beginning July 1 — supposedly had been ratified.
First, on August 24, Simmons told me in an email that “public action” had been taken on the contract at the August 13 board meeting. When I noted that there was no evidence of any such action from the agenda or recording of that meeting, she stopped responding to me.
On October 8, IU spokesman Chuck Carney told the IBJ that the agreement had been discussed and approved at the August meeting, but in executive session: “As is standard procedure, personnel decisions involving contracts are discussed in executive session, if they are discussed at all…,” he said.
The problem with that explanation is that it admitted behavior by the trustees that was illegal. As Public Access Counselor Luke Britt told me in an email on October 1, under the Open Door Law,
a new contract with a former employee containing new terms and an extension of funds would need to be discussed and ratified by the full board. There is no executive session provision for these matters either. Contracts by governing bodies are always to be discussed and vetted in public, regardless of subject matter or contractor.
After Carney’s explanation to the IBJ, I filed a formal complaint with the PAC alleging violation of the Open Door Law.
IU general counsel Simmons filed a response in which she erupted with outrage that I would write about what the trustees do in secret:
Professor Sanders is not the crusader for public transparency that he hails himself to be. He claims his actions are being taken in the public interest and that the inordinate amount of time he has devoted to this matter is somehow tied into his scholarly pursuits at the law school. That is far from the truth. Professor Sanders is not acting out of public interest but out of his own interest.
The letter did not explain how exactly I was gaining from uncovering and publishing facts (with no paywall) about how the trustees do business. As another IU higher-up quipped to me about Simmons’s letter, “How much money have you made from this?”
I then filed a reply with the PAC, walking through the misstatements of law and misrepresentations of fact in Simmons’s response.
Apparently recognizing there was no way to rehabilitate its spokesman’s admissions about what the trustees routinely do in executive session, IU’s response abandoned that explanation in favor of a new theory. Simmons argued that the McRobbie contract did not require public action by the full board because the trustees had “delegated” the necessary authority — in some unspecified manner, at some unspecified time — to their then-chair, Michael Mirro.
In other words, IU argued that a public agency’s governing body may “delegate” any or all of its authority to one of its own members, then claim that that person is empowered to take — outside of public view — any action the governing body normally would be required to perform in public. But if this were true, the Open Door Law would be rendered meaningless, because a governing body could always circumvent it by “delegating” one of its own members to act on its behalf in secret. Simply to restate IU’s argument is to understand its absurdity and why it has no support in actual law.
Simmons’s filing shamelessly misrepresented facts around how the McRobbie contract was approved.
Documents I obtained under a public-records request, and which I had provided to the PAC, show that no one involved in the McRobbie contract thought that any final decision making authority had been delegated to Mirro, as Simmons claimed. As described in a May 6, 2021 internal trustees memo, Mirro had been dispatched in March 2021 (during another executive session, one for which no required public notice apparently was given) to approach McRobbie and negotiate the terms of a contract extension when the trustees thought the presidential search would fail and McRobbie would need to remain in office for six more months. Mirro and McRobbie then signed that extension, which promised about $582,000 in new compensation. But the trustees knew that any extension of McRobbie’s service as president would need to be ratified by the full board in public — as evidenced by the fact they scheduled, but later canceled, such a meeting for March 19, 2021.
Although a president had been found who could take office on schedule, IU’s response to the PAC attempted to spin a story that Mirro decided entirely on his own to pay McRobbie an additional $582,000. “Chair Mirro thought it was prudent to assure a smooth transition from President McRobbie to President Whitten and to provide some financial recompense” to McRobbie for rescheduling the sabbatical he was supposed to start July 1, and so “Chair Mirro sent the consulting letter to former President McRobbie promising to pay him for six months of consulting services to President Whitten.” No authority was cited for this completely fabricated assertion. IU’s legal theory was that Mirro acting on his own somehow eliminated the need for public approval by the full board. But did Simmons imagine this sort of lie would inspire confidence in how the trustees handle public funds?
In fact, as shown in the May 6 internal memo, what actually happened was that after Whitten was hired, McRobbie apparently told the trustees he expected to be paid anyway. And so the trustees acquiesced in the recommendation of a different trustee, Jim Morris, not Mirro, that the contract extension be converted into a “consulting” arrangement. Morris wrote, “I intend to advise [IU CFO] John Whelan and [general counsel] Jackie Simmons to make sure these payments are made…. This will uphold the integrity of the board’s commitments to Michael [McRobbie]….”
Mirro and another trustee later signed the May 13 letter to McRobbie memorializing the agreement. That letter made clear that Mirro had not been flying solo, and that the trustees had made a collective decision. The letter states: “the trustees have agreed to compensate you as set forth in the [contract extension] signed by you and the Chair of the Board of Trustees….” (Emphasis added.) Mirro may have signed the earlier contract extension with McRobbie, but the follow-up letter made clear the decision to honor it and pay it as a “consulting” arrangement had been agreed to by the full board, albeit in secret.
IU’s response also sought to mislead the PAC — and discredit me — by misrepresenting the value of the McRobbie consulting arrangement. It said, “McRobbie was entitled to his base salary [of over $320,000] during the period of July 1, 2021-December 31, 2021,” and thus, “the ‘new compensation’ for consulting services is $260,000, not $580,000,” as I had reported.
But that was untrue. The base salary that would have been paid July 1, 2021-December 31, 2021 was for the first half of a sabbatical. But, as was spelled out clearly in the document Mirro and McRobbie signed, McRobbie’s fully paid, one-year sabbatical was deferred; it will now start in January 2022. Thus, as a result of the consulting arrangement, McRobbie has been receiving an additional six months of base salary that he would not otherwise have received. The $582,000 total figure I cited was correct. Before publishing my original article, I gave IU officials the chance to challenge any facts, and they did not. The figure also was cited in other news media accounts and not denied by IU.
The general counsel’s gratuitous misrepresentation of basic verifiable facts — especially in a letter to a legal authority like the PAC —should be troubling to anyone who cares about the integrity of both lawyers and university administrators.
Now, after insisting for two months that the trustees had complied with the law, the trustees and/or their lawyer apparently have decided that their previous theories could not hold water, and so they have scheduled the “consulting” contract for a public vote once and for all.
Still, one can be skeptical that anything will change in the trustees’ overall behavior and their compliance with open-meetings law. Habits built up over decades, and apparently enabled by dubious legal advice, will be hard to break.
