Auburn University: A Case Study in the Need for Sunshine
For the past several years, Auburn University has been at the center of controversy over its governance practices. Its experience demonstrates the importance of open-meetings laws.
By Larry G. Gerber
For the last several years, Auburn University has been at the center of controversy over its governance practices. In April 2001, soon after the board of trustees abruptly fired popular president William V. Muse, representatives of the University Senate, the Student Government Association, and the Alumni Association jointly filed a complaint with Auburn's accrediting body, the Southern Association of Colleges and Schools (SACS). The complainants took issue with what they regarded as inappropriate board "micromanagement" of the university over many years. In December 2003, after two years of legal wrangling and an investigation of the charges by a court-appointed attorney, SACS imposed its strongest sanction short of withdrawal of accreditation: it placed Auburn on probation.
Among the charges cited in the complaint was the trustees' frequent violation of Alabama's open-meetings law. Although a federal judge excluded this charge from final consideration by SACS, Auburn's recent experience starkly demonstrates how excessive secrecy and lack of transparent decision making can contribute to problematic governance.
Behind Closed Doors
Less than two months before the filing of the SACS complaint in 2001, eight state newspapers, led by the Montgomery Advertiser and including the Auburn student publication, the Auburn Plainsman, filed suit in state court against the board of trustees for alleged violations of Alabama's sunshine law. In subsequent legal proceedings, the board acknowledged that in 1999 and 2000 it had violated the state's open-meetings law on sixteen different occasions, when either the full board or a quorum of the board met secretly to discuss such matters as a possible merger with a community college, plans for the start of a capital campaign, and the use of the trustees' skybox seats in the football stadium.
It was also revealed that two important board committees—the Athletics Committee and the Property and Facilities Committee—had often met in secret with no advance public notice and without taking minutes. In fact, in spite of the great prominence of intercollegiate athletics at Auburn, where the football stadium can seat twice the entire population of the city of Auburn, it had been years since the Athletics Committee had held a public meeting or recorded minutes of any private meeting. This standing committee was chaired by Montgomery banker Robert E. ("Bobby") Lowder, the individual widely regarded as the most powerful board member and as having the power to hire (and fire) football coaches.
The circuit court judge who initially heard the suit brought by the newspapers was so outraged by the evidence presented that he issued a sweeping permanent injunction in August 2001 prohibiting three or more trustees from meeting together to discuss university business without "providing reasonable public notice of the time, date, and place of such meeting." He also prohibited executive sessions of the board unless such sessions were for the narrowly defined purpose of "discussing the good name and character" of an individual or "pending litigation."
Even before the judge handed down his final ruling, the board had responded to the embarrassing publicity generated by the suit by adopting new bylaws requiring advance public notice for all its committee meetings. Nevertheless, the board appealed the judge's far-reaching order banning as few as three members of the board from getting together to discuss university business without public notice. In May 2003, the board won a partial victory when the state supreme court ruled that the open-meetings law applied only when a quorum of the public board was present or to meetings of committees having the power to act on behalf of the full board.
Critics of the board have long contended that Bobby Lowder has exercised undue, behind-the-scenes influence on other board members by virtue of the financial relationships many board members have with the bank he heads. Lowder has been a member of the board since 1983 and once had to resort to an appeal to the state supreme court to prevent then-governor Fob James from replacing him after his term had expired.
In putting Auburn on probation, SACS concluded that Auburn had failed to demonstrate "the existence and implementation of sufficient safeguards to ensure that the board is not controlled by a minority of board members." SACS also found that Auburn had failed to demonstrate that its president exercised "ultimate control" over the athletics program.
End of Probation
The concerns raised by SACS were closely tied to the lack of transparency in board decision-making processes revealed in the sunshine suit. This link was most clearly demonstrated by the failure of the board athletics committee to meet in public, even though it was commonly assumed that certain board members on the committee were actively involved in the conduct of almost every aspect of the athletics program. The trial court judge in the sunshine suit noted, moreover, that every matter that came before the full board in 1999 and 2000 passed, and that in 2000, all votes were unanimous. Minutes of the board meetings revealed little public discussion on most action items, leading most observers to conclude that substantive debate and actual decisions on key issues took place in private, before the board conducted its open meetings.
One month after SACS placed Auburn on probation, the board of trustees named Ed Richardson interim president. As state superintendent of education during the nine years prior to his appointment, Richardson had been an active and influential ex officio member of the Auburn governing board. In his new position, he worked with the board in adopting a number of reforms that convinced SACS at its annual meeting in December 2004 to end Auburn's probation. The ending of probation, however, has not eliminated all concerns about governance at Auburn. SACS has announced its intention to continue monitoring developments and to require Auburn to file a report later this year documenting the university's continuing commitment to eliminate problematic governance practices.
Auburn's recent experience demonstrates the importance of open-meetings laws. The possibility of minority control of the board increases greatly when decisions are made behind closed doors. Similarly, when little meaningful debate occurs in public about proposed policies, speculation as to the underlying motives of board members in supporting any given policy will likely occur. In their article in this issue of Academe, James Hearn and Michael McLendon argue convincingly that openness should not be considered an absolute in university governance. Auburn University, however, is a case study in the problems that can arise when boards of trustees ignore both the letter and the spirit of open-meetings laws.
Larry Gerber is professor of history at Auburn University and former chair of the Auburn University Senate. He is serving his second term as first vice president of the AAUP.
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