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Higher ed officials debate whether open records help or harm searches to fill high-level positions

GRAND FORKS -- When Thomas Mitzel initially applied for the position of president at Dickinson State University, he had no idea his application would be public.

GRAND FORKS -- When Thomas Mitzel initially applied for the position of president at Dickinson State University, he had no idea his application would be public.

Now in the midst of moving north to start the job in January, Mitzel said he still would have applied even if he had known about North Dakota's lenient open records laws.

"Although, theoretically, people are afraid of open records and they talk about the negative aspects, I'm not sure it has come to fruition," he said. "To me there are positive sides, too. I think if you understand what you talk about is going to go public and people are going to look at what you're doing and respond, you're more apt to be a little more careful and do the right thing."

In North Dakota, all government records are considered public, including job applications. If the state has a job opening -- whether for the president of a university or a football coach -- the public is entitled to know who applied for the job.

But State Board of Higher Education Chairwoman Kathleen Neset, along with many others across the state, said this discourages people from applying, and she would like to see the law changed.

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"I would like to see preliminarily when people originally put their names in, that the entire pool is not made open," she said. "I would like that to be a more secure opportunity so the candidates don't jeopardize their current positions just by putting their name out there."

In recent years, two legislative bills attempting to restrict access to the names of applicants failed, and recently, incoming interim UND President Ed Schafer said he believes the state's open records laws inhibit good candidates from applying for college presidencies and other high-level government jobs.

But finding someone who hasn't applied for a presidency at an institution for that reason alone is difficult, something Mitzel acknowledged. Former DSU head football coach Hank Biesiot, Theodore Roosevelt Center Project Manager Sharon Kilzer and professor Debora Dragseth all served on the DSU Presidential Search Committee and said via email and on the phone they didn't know of anyone who didn't apply specifically because open record laws.

"It's very anecdotal, and that's why I'm saying it could happen," Mitzel said. "I don't know if it does."

Anecdotal

Steven Shirley knew about North Dakota's open records laws when he applied for the Minot State University presidency in 2014. He moved there after serving as president of Valley City State University for six years and grew up in the state, so he said the law didn't hinder him.

Shirley said though he waited to apply until one of the last possible days, he immediately sent a well-received email to the VCSU campus community informing them of his application.

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"I wanted them to hear it from me and not the next day or two in the newspaper," he said.

While knowing his application would be public didn't make him nervous, Shirley said he could understand it might give someone pause.

"I guess just after a number of years you get used to it," he said. "It is what it is, and if you've got anything to hide or anything you don't want to show up in the front page of the paper you're in the wrong business because that's just the reality of the work that we do and the open government laws we have."

Neset said she didn't know anyone by name who had stayed away from North Dakota because of open records laws, she said when the board searched to fill the university system chancellor position earlier this year, she heard anecdotally that some candidates hadn't been aware their applications would be public.

Neset said she wants the pool of original applicants as broad as possible and doesn't want the law to keep potential applicants away.

"Will it make a difference? Do we know that? No, we don't because we don't know who might have applied or not, but if there's an opportunity for an individual to apply for this job and they hold back for the sole reason they know their name is going to be put into the media, we've lost a candidate," she said.

The search for the university system chancellor to replace Larry Skogen, who served as interim chancellor, yielded 21 applicants with experience, including former college presidents, chancellors, CEOs, a state senator and a system vice president. While ‎vice president for academic affairs with the South Dakota Board of Regents, Paul Turman was one of three finalists, he said the list could have been more impressive if not for North Dakota's open records laws.

"I can't say the pool wasn't good, it's just that only 20-some people for a job that significant somewhat surprised me knowing our president positions get 50 to 70 people to apply for them," Turman said.

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Other states have had similar arguments over what should be open when an applicant applies for a state job. In Minnesota, the law makes certain data about a candidate public at all times, but a person's name is private, unless they're a finalist for a job, which is defined as "someone who the appointing authority selects to be interviewed."

This creates a distinction between people who apply for the position and those are finalists, said Mark Anfinson, a Minneapolis lawyer and expert in open records law.

"Minnesota has a little more focused and managed approach to this issue," Anfinson said.

However, with the Minnesota law, some colleges and universities have created advisory committees to whittle down candidates, which are not subject to open records laws. Some of those committees then turn around and recommend only one person for the job. That person then becomes the lone finalist, making only that person subject to the open records law.

"With regards to this, no law is going to be perfect," Anfinson said.

In South Dakota, applications are closed except for those "submitted by individuals hired into executive or policymaking positions or any public body."

After working within South Dakota's laws, Turman said North Dakota's put the SBHE in a tough position.

"You want transparency, and I fully understand that, but there has to be some times where you trust the people you put on boards to make the best decision for the state," he said.

A solution?

UND President Robert Kelley retires Jan. 14 and will be replaced in the interim by Ed Schafer, a former North Dakota governor. A search is underway for a long-term replacement with hopes of a successful candidate taking office this summer, as Schafer's contract expires June 30.

UND Presidential Search Committee Co-Chairman Hesham El-Rewini declined to comment on the ongoing search via email and co-chairman Grant Shaft was unavailable, but UND faculty and staff said at meeting in September that their leader needs to be someone who can communicate with them and the media while working with open records laws.

Neset said she thinks open records are a good thing, but she thinks a solution lies with balance and not releasing the names of preliminary applicants.

"When this law now gets in the way of getting the best candidates to apply I think we have to talk about it," she said.

Skogen, the former interim board chancellor, took part in several university president searches in his time with the system.

"I can't prove open records in an application process hurts the pool and I can't prove it helps the pool," he said.

What matters, Skogen said, is what legislators and their constituents think of the higher education leaders they end up with as a result of those publicized searches.

"We had excellent applicants, and I think we hired excellent presidents but we don't know the unknown," he said. "We have absolutely no way to demonstrate it other than anecdotally."

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