Stop the government from keeping finalist lists secret

The Mark Kennedy debacle shows why transparency is essential

A view of the University of Colorado Boulder campus. (colorado.edu)

When the University of Colorado regents in 2019 announced Mark Kennedy as the sole finalist in their search for a new president, it was clear to many people who read the relevant Colorado statutes that, to avoid transparency, they broke the law.

The Daily Camera sued the regents for information about other candidates for the position, and the case is still in the courts, where the meaning of laws governing release of finalist information has been vigorously debated.

Another venue where the Kennedy case continues to reverberate is the Colorado Legislature. Two House members propose to rewrite laws that concern the “finalist” question. But far from wanting to ensure that members of the public have even minimal insight into the process of selecting powerful public officials, the legislators want to make anti-transparent behavior unambiguously legal.

Their bill is an affront to principles of open government, and every lawmaker who cares about serving the interests of their constituents should reject it.

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The statutes say that when a public body seeks to hire a “chief executive officer” — like the president of a public university system — it has to “make public the list of all finalists under consideration.” The law defines a finalist as “a member of the final group of applicants or candidates.” And it even specifies that “if only three or fewer applicants” are qualified, they’re all supposed to be deemed finalists.

Needless to say, the nationally-admired CU system had no problem attracting qualified applicants. But the regents twisted the law to keep the names of every finalist but Kennedy secret from the public. They circumvented the plain meaning of the law by essentially saying that one of the qualifications for being a finalist was to be named by them as a finalist. That way, the only candidate they had to name as a finalist was the person they had already decided they would name as president.

This circular logic obviously violated the law’s intent, which is that members of the public have access to information about the pool of candidates from which the regents make their ultimate selection.

A court last March affirmed this interpretation of the law. “The Court concludes that six individuals were ‘finalists’ for the position,” Denver District Court Judge A. Bruce Jones wrote in deciding the Camera lawsuit. “Frankly, it is difficult for this Court to avoid concluding that the Board’s interpretation is designed to justify a predetermined outcome, rather than to align with the statutes.”

University of Colorado President Mark Kennedy takes part with Gov. Jared Polis in a news briefing about Colorado’s response to COVID-19 on Sept. 3 2020. (Governor Jared Polis Facebook)

But the Colorado Court of Appeals this month reversed Jones’ ruling in a decision so confused it makes the “finalist” provisions in the law seem by comparison as precise as Euclidean geometry. The appeals panel, like the regents, found a way to interpret the law so that being named a finalist could be a prerequisite for being named a finalist. The publisher of the Camera says he plans to advance the case to the Colorado Supreme Court.

The lone clear-headed judge on the three-member appeals panel dissented — “the relevant statutes … unambiguously contemplate that, unless there is only one applicant for a position, there will always be more than one ‘finalist,’” that judge wrote — and even the majority acknowledged that its interpretation of the law could be “inimical to principles of open government.” But, it added, “that is for the General Assembly to address, not the courts.”

Enter the General Assembly.

Republican Rep. Tim Geitner and Democratic Rep. Shannon Bird are sponsoring House Bill 21-1051, called “Public Information Applicants For Public Employment.” Based on the language of the bill, Geitner and Bird think very little of principles of open government.

The bill would change the law to remove any doubt that the regents, and any public body, could name only one finalist if they wanted to, even for a position responsible for a $5 billion public institution like CU.

What’s wrong with that? This is not an abstract question, thanks to the Kennedy episode.

When the regents selected him, the board had a Republican majority. Enterprising journalism uncovered the identities of other applicants for the president position, and it became clear that the majority on the board were less attracted to Kennedy’s administrative credentials than by his political attributes. Kennedy was a conservative former congressman from Minnesota who had a mediocre record as president of the University of North Dakota. The regents “passed over applicants with more experience running universities and more distinguished careers,” as The Colorado Independent reported.

But this wasn’t clear to the public until after the regents, in a party-line vote, hired Kennedy. Had the regents shared the finalist list publicly as the law demanded, CU likely would have a more qualified leader running it today.

So why would Geitner and Bird want to cement anti-transparency into the law? That’s a question their colleagues in the Legislature and their constituents should be asking.

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