Last updated on 02/06/2014
11/11/2013:
Also see related docs:
- 2012, Randy Geller accuses Senate President and IAC chair of publishing “offensive and false” comments.
- 2008 DOJ opinion on Faculty Assembly powers
- 2009 Melinda Grier opinion on Open Meetings Law and Senate
- 1992 IAC charge from Senate
- UO Matters IAC and NCAA FAQ
From: Randy Geller <[email protected]>
Date: November 7, 2013 8:22:48 AM PST
To: Robert Illig <[email protected]>
Cc: Margaret Paris <[email protected]>, Michael Gottfredson <[email protected]>, Rob Mullens <[email protected]>
Subject: Public Meetings Law and the IAC
Dear Rob:
I appreciate your patience as we have worked through this issue. I am happy to try to clear up the confusion around the applicability of the Oregon Public Meetings Law (OPML) to meetings of the Intercollegiate Athletics Committee (IAC). The IAC is a committee acting under the authority of the “statutory faculty.” Although not used in Oregon law, “statutory faculty” is a term that is used in the UO Constitution and intended to provide definition to the phrase “president and professors” used in ORS 352.010.
Margie Paris has explained to me that it is your preference and hers that IAC meetings be closed. However, Margie indicated that some members of the IAC desire that meetings be open. I have previously advised you and your predecessor as chair, Brian McWhorter, that nothing precludes the IAC from following the requirements of the OPML. Compliance with the OPML involves a fairly detailed list of obligations (in addition to making certain kinds of meetings open to the public), and you are free to meet these obligations. My advice is simply that the IAC is not legally required to comply with the OPML. Short of full compliance with the OPML, the IAC may choose to open some or all of its meeting time to the public or portions thereof, but Margie explained to me that her concern is that open meetings may narrow the scope of the discussion and the practical ability of the IAC to consider certain matters.
The narrow question at issue, then, is whether the IAC is required to comply with the OPML. This question is answered by determining whether the IAC has the authority to make decisions for or recommendations to a public “body.” In my view, the answer to that question is “no.” This email does not provide, and should not be construed as providing, advice about any other issue. Specifically, I stress that this discussion is narrowly addressed to the applicability of the OPML to the IAC. It should not be understood to address the scope of the faculty’s authority or the relationship of that authority to the authority of the State Board of Higher Education (SBHE), the Chancellor, or an institutional president.
The OPML applies to all meetings of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. ORS 192.610(5); 192.630(1). The term “[g]overning body means the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.” ORS 192.610(3) (underlining added). The term “[p]ublic body means the state, any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof.” ORS 192.610. While not binding, the Oregon Department of Justice has opined that an individual official is not a public body. 42 Op Atty Gen 187, 189 (1981); 44 Op Atty Gen 69 (1984). I find the Department’s views to be persuasive on this issue because the use of the term “body” in this context would clearly mean a number of individuals regarded as a single entity (e.g., the “student body”).
Whether the IAC has the authority to make decisions for or recommendations to a public body must be determined by reference to the legislatively-established roles of the SBHE, Chancellor, presidents of the seven public universities, and the professors at each of the seven public universities. The Oregon University System (OUS) was established as a public university system by ORS 351.011. OUS consists of the Chancellor’s Office, the public universities listed in ORS 352.002 and any related offices, departments or activities. The University of Oregon is one of the public universities listed in ORS 352.002 as a public university under the jurisdiction of the SBHE.
Under ORS 352.011, the SBHE, on behalf of the Oregon University System, “shall exercise and carry out all of the powers, rights and duties that are expressly conferred upon the board or that are implied by law or incident to such powers, rights and duties.” Another statute, ORS 351.070, lists some of the SBHE’s authorities. More specifically, ORS 351.070(4)(a) and (b) provide as follows:
(4) Subject to such delegation as the board may decide to make to the public universities and offices, departments and activities under its control, the board, for each public university, office, department or activity under its control:
(a) Shall supervise the general course of instruction therein, and the research, extension, educational and other activities thereof.
(b) Shall adopt rules and bylaws for the government thereof, including the faculty, teachers, students and employees therein. (underlining added).
ORS 351.085 describes the duties and powers of the Chancellor. Subsections (1) and (2) provide as follows:
The Chancellor of the Oregon University System shall exercise, under the direction of the State Board of Higher Education, the administrative and management authority necessary to carry out the policies and directives of the board with respect to the public universities and offices, departments and activities under the control of the board. In carrying out the duties of the chancellor, the chancellor shall:
(1) Serve as chief executive officer of the Oregon University System and administrative officer of the State Board of Higher Education.
(2) Supervise the presidents of the public universities listed in ORS 352.002 and recommend the terms and conditions of their employment to the board, including but not limited to appointment, compensation and termination.
ORS 352.004 describes the role and authority of the president of each of the public universities within the Oregon University System:
The president of each public university within the Oregon University System is also president of the faculty. The president is also the executive and governing officer of the public university, except as otherwise provided by statute or action of the State Board of Higher Education. Subject to the supervision of the board, the president of the public university has authority to control and give general directions to the practical affairs of the public university. (underlining added).
Similarly, ORS 352.010 describes the composition of the faculty and its role:
The president and professors constitute the faculty of each of the public universities listed in ORS 352.002 and as such have the immediate government and discipline of the public university and the students therein, except as otherwise provided by statute or action of the State Board of Higher Education. The faculty may, subject to the supervision of the board under ORS 351.070, prescribe the course of study to be pursued in the public university and the textbooks to be used. (underlining added).
These statutes establish the Legislature’s intended framework for the respective roles of the SBHE, the Chancellor, each institutional president as the executive and governing officer and the president of the faculty of his or her institution, and the “president and professors” as the “faculty” of each institution governed by the SBHE.
Much of intercollegiate athletics would seem to be a “practical affair” of the University, see ORS 352.004, and thus the president’s responsibility, subject to supervision by the SBHE and the Chancellor.
Further, the SBHE has adopted numerous rules and bylaws for the government of each of the public universities, including their faculty, teachers, students, and employees. The SBHE’s policy on Executive Leadership can be found here:
http://www.ous.edu./sites/default/files/state_board/polipro/BdPol130510.pdf. Parts (F)(1), (6) and (7) are the relevant parts.
The SBHE has also enacted OUS Internal Management Directive Section 8. While somewhat dated, this IMD is still in effect and sets forth the role of the institutional presidents in relation to intercollegiate athletics in a variety of ways. Another IMD is Section 1.130, which designates the president as responsible for the development and administration of institutional policies and rules governing the role of students (which would seem to include intercollegiate athletics) and to “take into account” the views of students, faculty, and others. The Internal Management Directives are found here: http://www.ous.edu/sites/default/files/about/polipro/files/IMD4-10.pdf
To the extent that the SBHE has acted so as to delegate authority regarding intercollegiate athletics to the institutional presidents (and the directors of athletics), the IAC’s role is to advise the presidents and the directors. Presidents and directors are individual officials and not public bodies. Thus, the IAC is not subject to the OPML because it does not have authority to make decisions for or recommendations to a public body.
Further, to the extent that the faculty have a role relative to intercollegiate athletics, the SBHE’s actions and the UO Constitution both appear to provide that the president, an individual official, is the ultimate decision-maker via a presidential veto that may not be overridden by the professors.
I want to reiterate that the narrow question at issue is whether the IAC is required to comply with the OPML. This question is answered by determining whether the IAC has the authority to make decisions for or recommendations to a “public body.” In my view, the answer to that question is “no.” The answer turns on the word “body” in the OPML. This email does not provide, and should not be construed as providing, advice about any other issue. Specifically, I stress that this discussion is narrowly addressed to the applicability of the OPML to the IAC. It should not be understood to address the scope of the faculty’s authority or the relationship of that authority to the authority of the State Board of Higher Education (SBHE), the Chancellor, or an institutional president.
I hope that this is helpful.
Randy
Randy Geller
General Counsel
University of Oregon
WTF? Margie Paris asked for justification to have closed IAC meetings? Are you serious?
Margie: Where does this come from? I assume you are not interested in bringing on another Penn State, but what the hell?
This clearly implies that Randy’s position is that the UO Senate is also not subject to the open meetings law. That assumes that one position he might take would be consistent with another.
Margie,
Can you please try to close the Senate to the public? I’d love to see that.
The UO Constitution requires that the Senate hold open meetings, essentially in accord with the Oregon Public Meetings law. For its part, the Senate is free to pass legislation making all meetings that report to the Senate be open meetings. Neither Oregon Law nor Randy Geller will be able to prevent it from doing so. Not long ago, on this Blog, the Old Man called for SOMEONE to make such a motion to the Senate. Are all you bloggers just gonna sit on your butts?
Shouldn’t the Committee on Committees be consulted and asked to make a recommendation? Didn’t they just to a review of all committees?
You all are missing the argument, that saleint part is here: ” the IAC’s role is to advise the presidents and the directors. Presidents and directors are individual officials and not public bodies. Thus, the IAC is not subject to the OPML because it does not have authority to make decisions for or recommendations to a public body.”
And,
“appear to provide that the president, an individual official, is the ultimate decision-maker via a presidential veto that may not be overridden by the professors.”
Thus, he is arguing that the University of Oregon is not a public body: The University of Oregon, rather, is a Gottfredson dictatorship. His argument is an assault on democracy. Not only is this an assault on the democracy of the faculty senate, it is an assault on the democracy of the people of Oregon.
Not to mention that the IAC’s charge includes that the “IAC shall advise the senate.”
I’ll be introducing a motion in the Senate this Wed, on IAC transparency and confidentiality. I hope it will come up for discussion and a vote at the December meeting.
So, if I understand correctly, the real argument here is that the Senate is not a governing body–of the UO, which IS a public body quite obviously. (Geller ultimately conflates–or does a bait-and-switch–to conclude that the Senate is not a public body, which isn’t the point he himself originally makes about the applicability of OPML.) The IAC advises the Senate, but if the Senate is not a governing body, then OPML doesn’t apply.
But of course, at least in some matters, the Senate IS a governing body. Does OMPL apply in those areas where it’s governing, and thus to those committees (e.g., the Committee on Courses, which does require a quorum) that advise it on those matters? Is the argument that it ONLY applies in such areas (and athletics is not one of them)?
The main question is whether and how Geller’s opinion matters, or is binding. He’s clearly, like any lawyer, just trotting out the argument his client (UO admin and AD) had paid him to make. Presumably we need now another lawyer to trot out the contrary for those members of the IAC who argue that OPML applies. And then we need a judge to actually decide which is binding. All soon and for free!
OSSHE is a governing body. The new UO Board is a governing body. The IAC gives recommendations to both. Ergo, IAC is a governing body.
UNIVERSITY OF WASHINGTON: http://www.washington.edu/admin/rules/policies/APS/01.05.html :
“The Open Public Meetings Act (OPMA), codified as Chapter 42.30 RCW, requires that all meetings of the governing bodies of a public agency and any committees of such governing bodies shall be open and public with certain limited exceptions….
“2. Governing Bodies Subject to the Act…
“a. Governing Bodies
“Policy and rule-making bodies of the University of Washington, such as the Board of Regents and the Faculty Senate, are considered governing bodies of the University and must comply with the OPMA. …
“b. Committees of a Governing Body
“A committee established by a governing body is also subject to the OPMA when it engages in activities specified in the statute: “acts on behalf of the governing body…
“A committee acts on behalf of the governing body when it exercises actual or de facto decision-making authority for the governing body. … Other committees of the Faculty Senate or of other governing bodies serving only an advisory function are not subject to the OPMA requirements.”
NEW YORK PUBLIC UNIVERSITIES: http://docs.dos.ny.gov/coog/otext/o4721.html
” You have sought an advisory opinion concerning the status of committees of the Faculty Senate at the State University at Binghamton. The Faculty Senate, according to your letter, “is the University’s primary academic governance body, and is charged with the responsibility to formulate many of the institution’s academic policies” pursuant to the University’s Faculty by-laws. …
“I believe that any entity consisting of two or more members of a public body, such as a committee or subcommittee consisting of members of the Faculty Senate, which clearly appears to be a public body [see Perez v. City University of New York, 5 NY3d 922 (2003)], would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]….”
Robert J. Freeman
Executive Director
State of New York
Department of State
Committee on Open Government
UNIVERSITY OF TEXAS: https://www.oag.state.tx.us/AG_Publications/pdfs/openmeeting_hb.pdf
Attorney General of Texas, Open Meetings Handbook 2014:
“Gulf Reg’l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803, 809 (Tex. App.—Houston [14th Dist.]
1988, writ denied); Tex. Att’y Gen. Op. No. H-438 (1974) at 4 (concluding that Athletic Council of The University
of Texas, as governmental body that supervises public business, must comply with the Act).”
These are great. The only problem is that Gottfredson and Geller do not fear being outliers. Gottfredson is already known for denying academic freedom. A little close meeting here and there ain’t nothin’.
“UNIV OF …” Comments of the month.
Please keep this stuff coming, and let me know of a secure drop site where I can leave a UO Matters or U of Nike coffee mug – Moscow rules, as George Smiley would say.
Since OUS will no longer be the governing board June 2014 it would seem that everything written above is worthless, unless you read between the lines you may be able to see the expected powers of the faculty senate and the role of shared governance will be under the independent board (less than zero). There is a short legislative session starting this February, if it is important to have shared governance the faculty may want to have that in legislation.
This is fascinating. There is so much double speak here, it is tough to tell what the actual argument that Geller is making is. In standard lawyer form, he just throws out a lot of arguments and nonsense and hopes that one will stick.
If there were actually a law that backed up his reasoning, he would have cited that law; he would not have made some weird convoluted argument.
From my reading, I *think* Geller and Park are trying to argue that because the IAC advises Gottfredson, who is an individual, and not a “public body”, that OPML doesn’t apply. I call bull shit on that.
More accurately, Geller and Park and the rest are taking the same approach on this that they have always taken in regard to University policies: We (i.e., Geller et. al.) really don’t care what the law says, we will break the law….So, what are you going to do to stop us?
And, so far, no one has given them an appropriate answer to that question.
If anyone is so inclined, the next step, among others, would be to file a complaint with the Oregon Government Ethics Commission.
Here is the link:
http://www.oregon.gov/OGEC/pages/complaint.aspx
I would recommend that *many* people file a complaint. It only takes a few minutes. It will be more likely that there will be a real investigation that way.
One thing Geller knows: Unless you can get them on a Federal crime, they (the criminals at the UO) are probably in the clear. The OGEC and no Circuit Court will ever touch the University of Oregon. You have to get them on a Federal crime: That’s the only time that the existing structures of power will be removed and they will actually be compelled to act within the law.
Your GC was asked to produce an opinion defending closed meetings. That’s his job, and he gave it a fair effort. The interesting part is at the start, where he attempts to cover his own butt with an explanation of who asked him, and what they asked him for.
True enough. Rob Illig and Margie Paris are the relevant actors. How much support do they have on the IAC?
Holy crap … does he proof read or edit? Does he realize he concluded himself a few times? Or does Dr. Nefaro assume all words are god given jewels waiting to inform?