‘You have no idea how strange this process has been’: The long, difficult search for IU’s 19th president

It was tortuous, expensive, and as one participant put it, “unconventional.” It demonstrated the problems of secrecy and a Board of Trustees unaccustomed to working in a shared-governance process.

In choosing a president, the trustees rejected the finalists recommended by faculty, alumni, and others on the search committee they had appointed, and found their own candidate in the 11th hour. Then, they violated open-meetings law when they agreed to pay the outgoing president more than half a million dollars.

By Steve Sanders

The author is an IU alumnus and law professor. I am grateful to the numerous faculty colleagues and alumni friends who read drafts of this article and assured me that its publication would serve the public interest.

[Subsequent developments in this story are described in an article I posted December 2, 2021.]

At a press conference last April introducing Pamela Whitten as Indiana University’s next president and the first woman to hold that title, IU trustee Melanie Walker portrayed the search process as harmonious and collaborative. “Faculty, staff, students, alumni, key partners across the state, and other friends of the University were all represented on the search committee,” said Walker, who chaired the committee. “It was a great group of minds that came together that are bringing us Pam.”

In fact, the process that culminated in the Board of Trustees appointing IU’s 19th president was tortuous and flawed. It left some of its participants bewildered or unhappy, and it departed from the trustees’ commitment to give faculty and other stakeholders an effective voice in the process.

A 17-member search committee, appointed by the trustees and including all the people Walker mentioned, spent last November and December sifting resumes, discussing and interviewing candidates, and taking votes. The committee chose four finalists, one internal and three external. Whitten was not among these. But the trustees rejected all of these finalists, and they didn’t explain why to the search committee.

As the clock was ticking toward President Michael McRobbie’s June 30th retirement and the prospect loomed of a failed search, the trustees themselves drew up a list of approximately four new external candidates, including Whitten, and asked the search committee to interview them — the inverse of how the process is supposed to work. Meanwhile, McRobbie was asked to prepare to remain in office for six more months if necessary. Finally, the trustees conducted their own interviews with several of the late-added candidates before coalescing behind Whitten.

It was the end of a long, difficult journey. One candidate told me they found the process “unconventional” and that “I could tell something was not right.” Another person directly involved in the search told me it left them “befuddled” and said, “You have no idea how strange this process has been.”

One search committee member replied to my request for an interview by noting they were obligated to maintain confidentiality and saying, “I have no comment.” Then, after a pause, this person added, “That ought to say a lot. If there had been a process I felt good about, I probably would comment.”

After appointing Whitten, the trustees made another decision: to honor a gentlemen’s agreement with McRobbie and pay him the $582,000 he would have earned if he had stayed on the job another six months, even though he didn’t. This agreement was never discussed or ratified in public, as state open-meetings law requires.

This article is based primarily on interviews with eight people who directly participated, in various capacities, in the process that culminated in Whitten’s appointment, as well as conversations with several other knowledgeable people. They discussed the search on the condition I would protect their identities. Some information also comes from public documents.

Why have I done this article? There are two reasons.

First, the selection of a president uniquely expresses a University’s values and aspirations and is the most important decision the trustees ever make. It affects the direction and priorities of the institution, and thus the interests of faculty and students, in profound ways. Whitten, who came to IU from Kennesaw State University in Georgia, seemed to many people a surprising choice.

Second, IU is a major research university and an arm of the State of Indiana, with a $4 billion budget. Its board is a public body exercising a public trust. Six members are appointed by the governor, and three are elected by alumni. The University’s stakeholders — faculty, staff, students, alumni, taxpayers — should have information necessary to evaluate how they do their work.

As a scholar who was originally trained as a journalist, I believe that critically examining the workings of an important public institution, so that the members of its community can then discuss and draw lessons, is valuable in its own right. It requires no motive or instrumental justification. Much of what I report here already has been circulating in the form of rumors. I’ve had a 41-year relationship with IU as an undergraduate, senior staff member to a dean and a vice president and chancellor, involved alumnus, and law school faculty member. I have the protection of tenure, as well as sources who would not have spoken to an outside journalist. I believed I had the perspective to write this article and explain why it’s important.

My examination brought an unwelcome attempt to chill this work. As I wrote about Monday, an Indianapolis law firm has demanded any emails I might have exchanged with trustees or members of the search committee. IU has refused to deny that it, one of its trustees, or some wealthy alumnus it might be working with is behind the demand. [Update: in December 2021 I obtained confirmation through a public-records request that the firm had been hired by IU General Counsel Jacqueline Simmons, who around the same time was hastily terminated by IU without any public reason being given. IU also changed its IT policy to prohibit administrators from making such requests.]

This article illuminates a process. University life revolves around expertise and norms of decision making. Those norms broke down here, and the University’s stakeholders should understand why in order to maintain IU’s core values and governance principles.

If a university is going to have a closed, secretive process for making a major decision, then it must honor established norms within that process. Yes, legally, the trustees can hire whomever they want. But they appointed a carefully selected search committee whose members represented broad swaths of the University community. The committee was the only voice in the decision for faculty, students, and alumni; it also included four of the trustees; it could thus have been a model for shared governance. Established norms required the trustees to make their choice from among the committee’s carefully chosen finalists.

Whitten, of course, bears no responsibility for the process that ended with her selection. Her work as president should be judged on its own merits.

The rest of this story will give background on the search, then describe 1) how disregard for their own committee’s recommendations led the trustees to appoint a president who had not been advanced with the strong support of faculty, student, and alumni representatives, and 2) how the trustees violated the state Open Door Law in creating an agreement to pay McRobbie more than half a million dollars in new post-presidential compensation. I close with some analysis and conclusions.

To help assure fairness and accuracy, before publication I sent this story in draft to Whitten, McRobbie, IU’s spokesperson, its general counsel, and three of the trustees discussed here. I invited them to dispute any facts or provide comments. None did so.

A black-box process and its problems

There are two schools of thought about presidential searches. One holds that they should be open; finalists should be named and brought to campus to interact with key constituencies before the governing board makes a decision. That, for example, is how IU’s Big Ten peer, the University of Iowa, conducted its presidential search last spring.

The disadvantage of this approach is that some strong candidates will not agree to be considered because they don’t want it known they might be considering another job.

The second school of thought holds that, while faculty, students, and alumni might be involved, the search, and especially the final decision making, should be done under tight cover of secrecy.

IU’s trustees chose the “confidential search” approach. The entire process was intended to be a black box.

The danger of such a process is that members of university governing boards like the IU trustees often have little understanding of academic work and how the university functions day-to-day; their insularity may deprive them of important context and information. Governing board members often are drawn from the world of business and/or owe their appointments to political connections. For example, Walker, who led the search and is the person most responsible for Whitten’s appointment, was a corporate executive appointed as a trustee by former Gov. Mike Pence, but she had never attended or worked at IU. (Walker, 62, died unexpectedly on July 31 after collapsing near her home in Bloomington. By all accounts, she was widely admired and beloved by many.)

With a few exceptions, members of IU’s Board of Trustees have only perfunctory contact with faculty members, staff, or students. The trustees hear short prepared reports from elected faculty leaders at their public meetings, and by statute one board member is a student. It was once the practice that each trustee was assigned as liaison to one of IU’s campuses and expected to meet with campus leaders; I’m told this practice has fallen into disuse. Long ago, the trustees and IU president routinely invited faculty council presidents to have dinner with them the night before a board meeting, where business could be discussed in a relaxed setting (though probably in violation of open-meetings law). That no longer happens.

The principle that faculty must have meaningful involvement in searches has been embedded in IU policy for decades:

The selection of senior administrative officers is one of the most important decisions made by the university that affects its academic mission. A 1976 resolution by the Board of Trustees endorsed the use of a search and screen process that includes faculty and other affected constituencies.

And as the American Association of University Professors has said,

Joint effort of a most critical kind must be taken when an institution chooses a new president. The selection of a chief administrative officer should follow upon a cooperative search by the governing board and the faculty, taking into consideration the opinions of others who are appropriately interested.

A confidential search can work if it has meaningful involvement by faculty, academic administrators, students, and others. When it doesn’t, it can help sink the whole search. The limits of the trustees’ own knowledge, combined with the curtain of secrecy around the search, made it important they respect the work of the committee they had appointed.

President Michael McRobbie, with his wife Laurie, presiding over his last IU Bloomington commencement in May 2021. (IU photo)

Planning for a presidential transition

With McRobbie’s bold, effective, and consequential 14-year presidency nearing its end, it is unclear how much planning the trustees did, before the search, to identify the kind of leader who should write IU’s next chapter. There is no record of such candid discussions at the board’s public meetings.

The trustees did appoint a broadly representative “search advisory committee” — separate from the actual search committee, and co-chaired by three trustees— to hold open forums and provide a report on what characteristics IU’s next president should have. Because the forums were held on Zoom during the pandemic, participation was sparse.

It’s also unclear how much transition planning the trustees did to anticipate all the vacancies a new president might have to fill. Knowledgeable observers had for years expected a number of senior officers to head for the exits around the same time as McRobbie. And as it happened, two vice presidents and the IU Bloomington Provost announced their departures with or shortly after McRobbie, and IUPUI’s chancellor has announced his retirement next year. IU currently has five interim vice presidents, an interim regional campus chancellor, and an interim president of the IU Foundation; searches are underway for the leaders of its two largest campuses, Bloomington and IUPUI. However good Whitten’s judgment might be, that is a lot of important vacancies for a new president from outside the institution to fill. A huge amount of institutional knowledge and memory is being lost all at once.

The IU Board of Trustees in a public business meeting. Trustees Gonso and Walker are at upper left. (IU photo)

The trustees appoint the committee

On October 2nd of last year, IU announced that the trustees had appointed a 17-member search committee which included three faculty members, a student body president, two school deans, a regional campus chancellor, and a variety of important alumni and major donors. The committee was diverse across gender, race, sexual orientation, IU experience, and campus affiliation. The trustees themselves also had a strong presence, with four of the nine board members on the search committee. (The full group of trustees who were on the board during the search can be found here.)

The trustees indicated they would follow the search committee’s lead and make a choice from among its finalists. In the resolution establishing the committee, they said they were “committed to involving Indiana University’s various constituencies,” and instructed the committee to “provide a ‘short list’ of final presidential candidates for Board consideration.” A news release said the committee’s charge was to “recommend three to five finalists in early 2021; then the board will conduct the remainder of the confidential search process and make the final appointment.”

The search committee was originally co-chaired by trustees Walker and Harry Gonso. Walker, a Cornell alumna, was CEO of the North American subsidiaries of a Japanese company that manufacturers automobile components. Gonso is a retired prominent Indianapolis lawyer and chief of staff to former Gov. Mitch Daniels, and a veteran member of the IU board.

Besides Walker and Gonso, two other trustees were on the committee: Molly Connor, the student trustee, who was then a student at IU’s McKinney School of Law in Indianapolis, and Quinn Buckner, an executive with Indiana’s Pacers Sports and Entertainment.

The committee was assisted by a prominent search consultant, R. William Funk. A search consultant is a headhunter — a matchmaker between an institution and a pool of candidates. As I describe later, IU ended up employing not just one but two marquee search firms.

Members of the search committee not only were asked to pledge confidentiality, they were required to sign an intimidating non-disclosure agreement (NDA) that threatened them with major legal expenses if they breached it. (I obtained a copy of the NDA from a search committee member who otherwise declined to talk with me.)

There are good reasons, of course, for expecting a search committee to keep sensitive information private and not broadcast the names of candidates. But the NDA’s breadth meant faculty and student representatives were forbidden from even consulting with their colleagues or peers about candidates the committee was considering, and from explaining the outcome of the process once it had completed.

The search committee changes leadership

Sometime last December, Gonso stepped aside as co-chair, and Walker assumed sole leadership of the search. No announcement was made. That might not have been noteworthy, except IU inadvertently drew attention to it by taking unorthodox steps to erase the fact that Gonso had ever served as co-chair.

The news release that had named Gonso co-chair was later retroactively altered online to make him only a committee member. (Compare the current version, which is still on IU’s website and still dated Oct. 2, 2020, with the originally published version.) A second news release, issued in early December after both Gonso and Walker had given a search update to the trustees, also was later changed online to remove reference to Gonso. (Compare the current version on IU’s website with the original version.) Finally, official minutes from that December trustees meeting attribute solely to Walker portions of an update on the search that (as can be seen on the video of the meeting at 2:17:15) were plainly delivered by Gonso.

IU spokesperson Chuck Carney said Gonso stepped down as co-chair for personal reasons. Gonso did not return an email I sent him on September 9 seeking comment. When I asked Carney on August 12 about the altered news releases, he responded:

Because we often include links to prior news releases in subsequent announcements, we do sometimes update content to reflect current information. In such cases, it is our practice to add an editor’s note, indicating the date that the story was updated. In the example that you shared, an editor’s note wasn’t included, which was simply an oversight. However, changes in committee membership and roles are typical in any process or initiative. We do not typically issue news releases or internal stories about such changes.

No editor’s notes have been added to the news releases. [Update 2/4/22: a note now appears on the Oct. 2, 2020, release indicating it has been edited.]

Why dwell on this issue? Because there is a difference between updating information, and retroactively altering information that was once true.

The search committee narrows the field

In late fall, the search committee sifted through several hundred candidates. Some committee members felt the candidate pool should have been stronger, and that it was especially lacking strong minority and women candidates. One person involved in the search suggested to me that the process seemed rushed and thought its timing should have been reconsidered, and that the pandemic may have kept some people from applying because they were managing the crisis on their own campuses.

Walker told the committee the trustees strongly preferred to name a woman or minority, according to a person involved. I was told Walker also said there were a number of strong minority or women candidates out there whose salary expectations would be out of reach for IU. (Whitten’s publicly reported base salary this year is $650,000.)

After reviewing resumes, the committee voted to narrow the list for Zoom interviews. Whitten’s credentials were presented on November 12th, according to Funk’s chief of staff, Krisha Creal. Before coming to IU, Whitten had been a dean at Michigan State, provost of the University of Georgia, and president at Kennesaw State. While provost at Georgia, she was a finalist for president at Iowa State University and chancellor of the University of Tennessee.

The search committee conducted remote interviews with approximately eight candidates, including three internal applicants and five external. Whitten was discussed but was not chosen for an interview. I emailed Whitten twice, on September 3 and again September 8, to provide an opportunity to correct this information if it was wrong and to ask for her comments. She did not respond.

The committee’s finalists

There have been varying accounts of how many finalists there were in the search. In response to a question at the press conference announcing Whitten’s appointment, trustee Walker claimed, “The search committee chose eight to ten to move through the process and forward on to the trustees.” The Indianapolis Business Journal, apparently relying on information from trustee Michael Mirro, has reported, “The search committee narrowed an original applicant pool of more than 300 to about 20. These were then screened through Zoom interviews, and winnowed down to five finalists.” The confusion might be attributable to the fact the search ended up having a later second round, as I will describe.

According to multiple people involved in the process, after the online interviews the search committee in fact recommended four finalists in early January, one internal and three external. Three were women.

The committee most strongly favored two of the finalists: the internal candidate, Lauren Robel, an IU law professor who was then serving as Executive Vice President and IU Bloomington Provost, and an external candidate who currently is a top officer at another university. (I have withheld this person’s identity because they are still in their job at the other institution.) I was told the committee was unanimous in its support of the external candidate, and almost unanimous — there was one no vote — in support of Robel.

Robel earned her law degree at IU and served as a faculty member and dean of the law school before becoming provost in 2012. Robel announced on March 24, about three weeks before Whitten was named, that she would step down as provost on June 30. (As a matter of full disclosure, I have been a colleague and friend of Robel’s for more than 20 years. She declined to speak with me for this article.)

The committee also advanced two additional external candidates. One was Barbara J. Wilson, a communications scholar and Executive Vice President/Vice President for Academic Affairs of the University of Illinois System. On April 30, Wilson was named president of the University of Iowa. The fourth finalist is currently a dean at another university. (I also have withheld this person’s name because they are still in their job at another institution.)

The trustees reject the search committee’s finalists

A screenshot of IU’s trustees and several administrators in a virtual public meeting in June.

While the search committee had conducted a “normal” search in the fall, one person involved in the search observed to me, the process later became, in this person’s words, “dysfunctional” and “confusing.”

After the committee’s votes on finalists were tabulated on January 8th and the list sent to the trustees, about a month went by. The trustees discussed the committee’s finalists and had conversations with them by Zoom.

Eventually Walker brought back word to the search committee that the trustees were not prepared to move forward with any of the finalists. Walker did not provide any reasons.

Why none of the search committee’s finalists was chosen is a central question in this narrative, but only the trustees know the answers. Nothing here suggests bad motives. But what dynamics were in play? This doesn’t appear to be a story about the trustees and the rest of IU’s stakeholders living in two separate worlds; there is no evidence there was any fundamental gulf between the two groups. After all, four of the nine trustees were members of the search committee. In that sense, the search committee was a model for effective shared governance. But clearly, when the trustees later got together themselves, they didn’t feel obligated to give deference to the search committee’s judgments.

How engaged were all the trustees? At least some people involved in the process came to understand that Walker — a corporate executive who had almost no experience with IU’s culture and the norms of university shared governance — was driving the process and making key decisions, and that the other trustees were giving her wide latitude. Also, according to a person involved in the search process, Buckner was absent from a number of the search committee’s meetings.

In any event, given institutional norms, the expertise provided by the search committee, and the trustees’ own previous commitments to an inclusive process, the decision to set aside the search committee’s work without explanation required strong justification which is not evident.

Trustee Melanie Walker, who chaired the presidential search, speaking at the announcement of Whitten’s appointment.

The search moves into Round 2

Representing the wishes of the trustees, committee chair Walker in February presented the search committee with a list of approximately four new candidates and asked the committee to interview them. Whitten was one of these candidates. In major searches like this, February is very late to be, in effect, going back to the drawing board.

It isn’t clear how the new list of candidates was generated. But Walker brought Whitten into the picture in early February. According to Creal, consultant Funk’s chief of staff, Walker contacted Funk on February 4 “to ask if we would contact Dr. Whitten and see if she would be willing to talk to [Walker] about the position.” Funk’s office facilitated the contact. “On February 7, Chair Walker called us to obtain Dr. Whitten’s contact information so she could talk to Pam directly,” Creal told me in an email. Creal did not describe any contact between Whitten and anyone at IU between November 12, when Whitten’s resume was first presented to the search committee, and the February call from Walker.

The trustees hire a second consultant

Although Whitten was shepherded through the search by Funk, the trustees also hired a new, second search consultant, Shelly Storbeck of Storbeck Search, to help identify new candidates. Storbeck had not worked with the search committee earlier in the process.

I have not been able to determine how much IU paid the two consultants. When I asked IU spokesperson Chuck Carney, he said he didn’t have the information and I would need to file a formal public-records request. I did so on September 11, almost a month ago, and am still waiting. (When I filed a request in May for some other records related to this story, the process required nearly three months. The state Public Access Counselor has ruled that this was an unreasonable delay.)

Since Storbeck was brought into the IU search late, presumably she played a smaller role than usual. For context, in other searches where her firm was the sole consultant it billed $214,200 in a failed search at the University of Wisconsin and $224,000 at the University of Minnesota. Funk’s firm reportedly had a budget of up to $170,000 for a search at the University of Louisville. Storbeck’s firm currently is handling the search for a new IU Bloomington Provost.

Asked about IU’s expenses for the search at a later press conference, Walker said, “I don’t think we really spent any money. We did it all via Zoom.” She acknowledged that final candidates traveled for interviews, “but I think that was probably the only real cost associated.” No other trustee or spokesperson who was present corrected this information. Apparently no reporter was knowledgeable enough to ask about consultants’ fees.

[Update 10/7/21: IU responded by my public-records request and said Funk’s firm was paid $168,025.59 and Storbeck’s firm was paid $50,000.]

The search committee interviews the trustees’ candidates

After being given the trustees’ list in February, the search committee interviewed the new candidates by Zoom. Each committee member was asked to rate each candidate as “Outstanding,” “Qualified,” or “Not Qualified.” The committee felt time-pressured because the window for a final decision by the trustees was closing.

One person involved in the process characterized the committee’s views on Whitten as “mixed,” but said at least some committee members thought she was the best of the second-round candidates. Two people involved in the process said Walker indicated her own support for Whitten. Some search committee members continued to advocate for Robel or the top-ranked external candidate.

The committee discussed extending the search, but Walker rejected that idea. In any event, it seemed clear that none of the committee’s earlier finalists was going to be chosen, and there was no guarantee a new search would yield new candidates.

With that, the search committee’s work was done.

Michael Mirro, who chaired the Board of Trustees during the presidential search.

The trustees take out insurance against a failed search

Meanwhile, as February turned to March, the trustees became nervous the search might end in failure or need to be extended. Sometime in March, according to an internal trustees memo, the board asked its then-chair, Michael Mirro, to approach McRobbie about continuing in office for up to six months. It would turn out to be an expensive insurance policy.

McRobbie and Mirro signed an addendum to McRobbie’s existing contract, which extended his employment until December 31, 2021. In return, McRobbie would receive an additional six months of his base salary (which comes to $324,722), a “retention bonus” of about $158,000, and a “pro rata share of his June 30, 2021 deferred compensation” (estimated at about $100,000).

Although the addendum was understood as insurance in case of a failed or extended search, curiously, nothing in its legal language said it was contingent — i.e., that McRobbie would only continue in office and only collect additional compensation if a new president could not take office July 1. This suggests that, at the time the addendum was drawn up in March, the trustees had essentially concluded that no new president would emerge in time.

From an outside view, events at this point seem a bit helter-skelter. The addendum was left undated, but according to the internal board memo, Mirro “authorized his signature to be placed on the contract” on March 19. On or around March 17, according to stored web pages, the trustees gave notice for an unusual unscheduled public meeting on March 19. The purpose of that meeting was to approve the McRobbie contract extension, according to IU Assistant General Counsel Amelia Marvel. But the meeting never took place. In a later letter to McRobbie, the trustees explained, “We did not ratify [the contract addendum] by public vote and placed it on hold thinking we might find a qualified candidate.” Then five days after the canceled meeting, on March 24, IU issued an upbeat press release claiming that “final candidates” had already been coming for in-person interviews.

In the end, McRobbie did not need to extend his term. However, because he had changed his plans for his post-presidency sabbatical in order to be available if needed, the trustees decided to pay him the full additional compensation anyway — a total of about $582,722 — and characterize it as payment for consulting services to the new president.

I received all documents cited in this section through a request to IU under the state Access to Public Records Act (APRA). In the course of waiting nearly three months for IU to produce what was ultimately three one-page documents, I filed a complaint about the delay with the state Public Access Counselor, who helps enforce compliance with APRA. He issued an advisory opinion on October 5 concluding that “Indiana University did not provide the materials in a reasonable time as required by” APRA.

The new payments to McRobbie were never discussed or approved in a public meeting, as state law requires. I return to that issue later in this article.

Whitten outside the Indiana Memorial Union. (IU photo)

Whitten is chosen

On March 24, IU announced that the search was entering its “final stages” and that “a diverse mix of external candidates has recently visited IU.” Whitten was among them. The non-trustee members of the search committee were not involved in these interviews.

On April 9, IU announced the trustees had begun “negotiations of a contract with a final candidate.” Mirro has said publicly that the trustees quickly coalesced behind Whitten.

Whitten had an impressive, if short, track record of accomplishment at Kennesaw State. During her three years as president, the school raised its research profile, grew enrollment, and finalized the three largest financial gifts in its history. As she has done at IU, she also pledged to “put students first.” (According to a 2018 Georgia newspaper story, Whitten “endear[ed] herself to the student body” in her first year at Kennesaw by creating “a new tradition” of the president “tossing hot dogs to students during football games.”) Several sources have said Whitten’s additional strong points with the trustees were her interpersonal skills; her emphasis on diversity; the fact that she is exuberant about athletics; and the feeling that, after 14 years of one style of presidential leadership, she would represent a “fresh start” — someone who was eager to collaborate and engage on a more personal level with both the trustees and groups like state legislators.

On the other hand, the fact remains that the search committee, including administrators, faculty, and widely experienced alumni, had not found Whitten to be a strong candidate in its original identification of finalists. As one participant in the search process told me, “I remain somewhat shocked that on the basis of resume alone, the faculty is not demanding more information.”

Whitten’s appointment was announced April 16th. As she, Walker, and several other trustees spoke to reporters, there were no signs of the difficulties and uncertainties of the previous six months. “We found exactly what we were looking for in Pam,” Walker said.

IU’s news release elides any discussion of the search committee’s role in Whitten’s selection. It describes the process this way: “Whitten was appointed by the board of trustees following an extensive search. Faculty, staff and students across the university provided early input regarding the characteristics and experiences most desired in IU’s next leader.” This “early input” apparently refers to the separate search advisory committee. But the actual search committee’s role in making decisions gets no acknowledgement. One member of the search committee, one of IU’s most important deans, is identified as someone who merely “advised on the search.” (As a matter of full disclosure, I was quoted at the time by the Indiana Daily Student and Indianapolis Business Journal as being critical of the trustees’ process and questioning Whitten’s selection.) A recent story about the presidential search in the IU alumni magazine also focused solely on the advisory committee, saying nothing about the work of the search committee itself.

The non-trustee members of the search committee were told of Whitten’s selection a day or two before the public announcement. At a gathering a few weeks later at Lennie’s on Kirkwood Avenue, they would meet IU’s new president face-to-face for the first time.

Part of a memo from Trustee Jim Morris to his board colleagues.

The payments to McRobbie, which have never been properly approved

Meanwhile, although Michael McRobbie did not end up serving additional time as president, the trustees still agreed to pay him the full sum — approximately $582,722, including a “retention bonus” of about $158,000 — that he would have received if he had been required to remain in office for six more months.

Why did the board still agree to pay McRobbie, and was there any misunderstanding involved? In a May 6 internal board memo, trustee Jim Morris, chair of the board’s compensation committee, told his colleagues that after signing the addendum, “Michael [McRobbie] therefore had a reasonable expectation that the signed contract was valid and he advises us that he therefore delayed his sabbatical opportunities at two institutions by one semester.” (Under his contract as president, McRobbie was scheduled to have an IU-paid sabbatical at his full presidential salary for the 2021–22 academic year. It will now begin in January. After that, he has the option to return to the faculty, with no teaching responsibilities, at two-thirds of his presidential salary.)

Reading between the lines of Morris’s memo, there is some suggestion that in originally making these commitments to McRobbie, chair Mirro may have gotten out ahead of the rest of the board. The memo says Mirro, “[b]ased on his good faith belief … authorized his signature to be placed on the contract on March 19…. Mike did this on our behalf because we had asked him during an executive session earlier that month to secure Michael’s service through up to the end of 2021.” Making the payments to McRobbie even though he would not serve more time as president, Morris said, “will uphold the integrity of the board’s commitments to Michael [McRobbie] and will also assure that when the Chair of the Board acts on behalf of the trustees those commitments are honored.”

The trustees decided to characterize the payments as being for “consulting services.” “While making these payments to Michael,” Morris wrote, “we can and intend to require him to make himself available if and when President Whitten needs his historical knowledge or advice.” The trustees confirmed the arrangement in a May 13 letter to McRobbie.

McRobbie did not reply to an email I sent him September 9 providing an earlier draft of what I have written here and asking for comment or correction.

Opinion will vary about the merits of the trustees’ decision to make these payments to McRobbie. There was nothing inherently improper about it. However, the process sheds light on the trustees’ attitude toward the Indiana Open Door Law.

By state law, public meetings are required whenever the trustees “receive information, deliberate, make recommendations, establish policy, make decisions, or take final action.” There are certain exceptions for personnel matters, but those involve only receiving information about or interviewing prospective employees, receiving information about misconduct, or “job performance evaluation” of a current employee.

According to Morris’s memo, the board’s March 2021 decision to ask McRobbie to continue in office was made in a closed executive session. Setting aside the fact that that likely was not an appropriate topic for executive session, a bigger problem is that the subsequent decision to convert the contract extension into a consulting arrangement also was done outside of public view. Morris’s memo simply informed the other trustees that “[a]s Chair of the Compensation Committee I intend to advise [human resources vice president] John Whelan and [general counsel] Jackie Simmons to make sure these payments are made.”

The trustees have never given public discussion or approval to any contract or other written legal authority for the new payments. I described the scenario to the Indiana Public Access Counselor, Luke Britt, and he confirmed in an email:

[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.

When I asked Simmons, the general counsel, about this matter, she replied by email on August 24, “Public action on the letter” — apparently referring to the letter the trustees sent McRobbie May 13, outlining how he would be paid — “which did not extend his term as President, was acted upon by the board at their August Board meeting.”

But this is not true. No item concerning McRobbie appeared on the agenda of that meeting, and my review of the video recording of the public business meeting showed no such matter was discussed or voted on. Moreover, the arrangement had been finalized in May and thus should have been approved at the board’s June meeting, since it took effect July 1. There is no record of it in the June meeting, either.

I sent two follow-up requests for clarification to Simmons, copying IU spokesperson Chuck Carney. The second request pointed out that Simmons’s claim the board had taken action in August did not appear to be true. I also asked the Board of Trustees office whether any such action had been taken. No one has responded to these queries.

[Update 10/9/21: IU’s spokesman claimed in response to queries from the Indianapolis Business Journal that the McRobbie payment agreement was discussed and decided in executive session at the August board meeting. If so, that would be a clear violation of the Open Door Law, as the email from Luke Britt quoted above makes clear.]

[Update 12/3/21: After months of the University making shifting explanations and insisting the trustees had properly approved the contract, the trustees finally put the matter on a public agenda and approved it in a public vote at their December 2021 meeting.]

[Update 2/11/22: The Indiana Public Access Counselor issued a formal and sharply worded opinion finding the trustees in violation of the Open Door Law, exactly as I described.]

Analysis and conclusions

My intention in this article has not been to vilify the trustees, whom I believe are loyal to and genuinely love IU. Nor do I wish to harm the legacy of McRobbie, who gave the University 14 years of truly extraordinary leadership. Rather, my intention is to foster scrutiny and accountability.

The trustees made a decision that was troubling and extraordinary, especially in light of IU’s strong traditions of shared governance: to reject the work and the well-considered recommendations of a broadly representative group of the University’s stakeholders, and not explain why.

Granted, the search committee’s views were solicited after the trustees, led by Walker, went on their own 11th-hour hunt for new candidates. If criticized, the trustees can say that, technically, faculty and others were involved in Whitten’s selection. But this inverted process set aside the careful conclusions of a search committee whose members had been chosen for their stake in the decision, their expertise, and their judgment. One trustee, Walker, was the only conduit between the board and the committee, and she appears to have played an outsized role in critical decisions. Several search committee members have indicated their unhappiness, to me and others, with how the search unfolded.

As I said at the top of this story, Whitten is not responsible for the process that chose her. But the fact she was appointed by trustees who decided to strike out on their own, rather than respecting the judgment of faculty and other stakeholders, suggests she should seek to cultivate support for major decisions through the shared-governance process, not simply act as though she has a mandate.

Numerous people spoke with me for this story despite IU’s use of the non-disclosure agreements described earlier. I have served on two dean-level search committees where NDAs were not used. One hopes they will not become more common. In my judgment, they are anti-collegial and would represent the further corporatization of the University. Everyone understands the need for confidentiality and discretion. But a threatening, formal NDA impedes shared governance by elevating institutional concerns for secrecy above the effectiveness of faculty, student, or other representatives in doing their jobs.

Turning to the McRobbie payments, views may differ on the wisdom or necessity under the circumstances of paying the $582,000. Some people have reacted to me that this is just how things are done in the business world; McRobbie was a great success, and the money pales in comparison to the amounts IU routinely spends to buy out failed coaches. Others have observed that it’s still a lot of money to the average person, or even faculty member. The more important point is that, in trying to iron out their hasty commitments to the former president — which were only necessitated by their decision to effectively restart the search in February — the trustees violated Indiana’s Open Door Law.

Perhaps this is just how the trustees are accustomed to doing business. Many of us have long understood that the board routinely flouts the Open Door Law by doing most of its real business in executive sessions or over email. The board’s public meetings always seem performative: important decisions appear to have been predetermined, and there is rarely, if ever, any true deliberation about anything.

Maybe it’s good for the University’s public image and support to keep anything controversial out of public view. But the point of the open-meetings law is to assure public knowledge and accountability.

Across IU’s top-level administration, there is evident a hubris that I think comes from not being accustomed to having actions examined and questioned by journalists or others. In researching this story, I gave every trustee and official who is named the opportunity to clarify or deny my findings. (I also gave them the opportunity to deny that they or someone they were working with was responsible for the demand for my email — if they were not, it was utterly irrational not to say so.) In almost all cases, I was met with silence. Clearly they had made a collective decision that if they just ignored me, the whole matter would go away.

It is unhealthy for an important public institution to operate in an environment where there is little independent and informed scrutiny by journalists or other professional seekers of information, people who are sufficiently well-sourced and equipped to ask difficult questions and penetrate self-serving institutional secrecy. I have attempted to remedy a small part of that problem here.

[Update: IU gave a short statement to Indiana Public Media on 10/6/21:

IU Spokesman Chuck Carney said the university will not comment on the personnel-related matter.

“However, we do wish to make clear that we are committed to diligently following applicable policies and laws to protect the integrity of personnel recruitment and hiring,” he said in a statement to WFIU/WTIU News.]

[Subsequent developments in this story are described in an article I posted December 2, 2021.]

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Professor of Law, Indiana University Bloomington Maurer School of Law. Email: stevesan [at] indiana [dot] edu. Faculty bio: https://bit.ly/2CdYqrd

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Steve Sanders

Steve Sanders

Professor of Law, Indiana University Bloomington Maurer School of Law. Email: stevesan [at] indiana [dot] edu. Faculty bio: https://bit.ly/2CdYqrd

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