Outside the University Memorial Center at University of Colorado Boulder. (colorado.edu)
The “sole finalist” bill on its face was always a gift to powerful officials at the expense of Colorado residents. State law currently calls for public bodies to name multiple finalists for top government staff jobs, but the bill would allow officials to name just one finalist, in violation of the principles of government transparency.
But if the inherent flaws of the bill were not enough to expose its unworthiness, a real life example of the harm it could do was making news just as the bill was advancing to the governor’s desk, where it currently sits awaiting his signature.
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Ever since the University of Colorado regents announced in 2019 that a former conservative congressman was the sole finalist for the CU president position, the candidate, Mark Kennedy, has served as walking testament to why the public is best served when officials are made to disclose multiple finalists before they select one. Subsequent reporting revealed that the Board of Regents, which at the time was dominated by a Republican majority, chose Kennedy in an apparent act of political favoritism over better qualified and more experienced candidates. Kennedy was never able to form a comfortable relationship with the CU community. He once asked that any statements from CU on “sensitive” topics such as race, LGBTQ issues and climate change be cleared first by his office. In April, CU Boulder faculty in an extraordinary move voted to censure him for a failure to lead on diversity issues. Now Kennedy is stepping down from his position as president, and he will get a $1.3 million payment for departing.
This was all avoidable. Public disclosure of the other, better finalists who were competing with Kennedy would have made it difficult for the Republican majority to have installed him as president in the first place.
That’s why Gov. Jared Polis should veto House Bill 21-1051, the sole-finalist bill.
Colorado statutes say that when a public body seeks to hire a “chief executive officer” 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. This applies to lots of important jobs, like city manager, police chief, fire chief, school district superintendent — and CU president, which oversees a $5 billion public institution.
When the CU regents announced Kennedy as the sole finalist, many observers thought they broke the law, and at the very least it was obvious they were avoiding transparency for no legitimate reason.
Some lawmakers during the current legislative session decided to address the issue. Except instead of tightening what were deemed ambiguities in the finalist law’s language — its spirit has never been in doubt — they chose to legalize CU-style secrecy.
HB-1051 was sponsored by Republican Rep. Tim Geitner and Democratic Rep. Shannon Bird. They claim a sole-finalist provision is needed to ensure high-caliber candidates will not be reluctant to apply for a position if they think their candidacy will be publicized. This is an empty argument. Coloradans can point to any number of top government staff people who were part of multiple-finalist searches and went on to perform exceptional work. There is “no documented proof the public-disclosure requirement has made it more difficult to attract highly qualified candidates for key leadership positions in government,” according to the Colorado Freedom of Information Coalition.
Denver Public Schools, the largest school district in the state, just announced three finalists for superintendent. “Each is bold, each is a rising star in the field of education, and each would be an excellent leader for Denver Public Schools,” school board President Carrie Olson said, according to Chalkbeat Colorado. Sounds like the district succeeded in attracting a top-notch candidate pool.
Meanwhile, Coloradans have a glaring and costly example of sole-finalist results: Kennedy.
Even if some would-be executives are scared off by public disclosure of their candidacies, the interests of Coloradans far outweigh the interests of the highly-paid people who want to work for them.
After the regents selected Kennedy, The Daily Camera newspaper sued for information about the other candidates. A Denver District Court judge agreed with the Camera that CU improperly withheld information about its multiple finalists. The Colorado Court of Appeals in March reversed that ruling in a decision that found significant fault with the relevant language in state statutes. The Camera appealed to the Colorado Supreme Court and is waiting to hear if the high court will consider the case.
Though the appeals panel would condone the regents’ behavior, its decision alluded to risks to transparency. The multiple-finalists interpretation of the law would “better advance the sunshine and open government principles that underlie those statutes,” even if the inept language allowed CU to skirt the principles, the court said. “But making statutes clearer, easier to administer or ‘better’ are not proper roles of this state’s courts. That is the job of the General Assembly.”
Yet when Coloradans looked to the General Assembly to make a better law, it did the opposite. It made a far worse law.
Now only the governor has the power to promote open government principles when it comes to finalists for top government positions. He should veto HB-1051.
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