In 1988, the Oregon State System of Higher Education (OSSHE) asked the Attorney General's office for an opinion on the status of advisory search committees under the Public Records Law. The AG found that the search committee as structured in the existing process was governed by the Public Meeting Law. The AG's opinion focuses on the scope of the committee's responsibility and its reporting relationship to the public body responsible for making the final decision.
I. Presidential Search Committee
"Presidential Search Process" (February 1988) authorized the chancellor to form an 11 person committee plus alternated drawn from nomination from the various constituencies on the affected campus, the OSSHE board and the community in which the campus is located.
II. Search Committee Responsibilities
Guided by a written charge from the chancellor, the committee was authorized to solict applications, review the applicants and submit a short unranked list (maximum of 5) of nominations with supporting materials to the chancellor. The committee could engage in the standard process used to evaluate and screen applicants, i.e. gather information about the candidates applicants through review of applications and references, telephone and personal interviews, and receiving the advice of a campus screening committee.
III. The Role of the Chancellor and Board in the Search Process
After receiving the short list the chancellor was authorized to release the names of the finalists to the public, conduct preliminary interviews with the candidates, and recommend "several" finalists for board. At this point the Board interviewed the candidates and then in executive session ranked them. The chancellor was then authorized to enter into negotiations as directed by the Board. Assuming successful negotiations, the Board would then vote on the selection in an open meeting.
IV. Application of Public Meetings Law
Oregon's Public Meetings Law, ORS 192.610 to 192.710, applies to every " meeting" of a "governing body" of a "public body." ORS 192.630. A " meeting" is the "convening 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). The search policy does not expressly provide that a search committee may make a decision only with a quorum present. That requirement, however, is implicit in the policy. Therefore, if a search committee is a governing body of a public body, its meetings to deliberate toward or make its decisions are covered by the Public Meetings Law.
"Public 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(4). The board plainly is a public body. 44 Op Atty Gen 69, 71 (1984). The Chancellor, however, is an individual public official and, therefore, is not a "public body" for purposes of the Public Meetings Law. See 44 Op Atty Gen 239, 260 (1984) (Attorney General's Public Records and Meetings Manual); 42 Op Atty Gen 187, 189 (1981). This distinction is crucial to our analysis whether a search committee is a "governing body."
"Governing 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) (emphasis added). A search committee is purely an advisory body. "A purely advisory group is a 'governing body' only if it makes recommendations to a 'public body,' which we construe not to mean an individual official." 44 Op Atty Gen at 260 (emphasis in original). Thus, the answer here depends on whether a search committee is properly viewed as providing recommendations to the Chancellor or the board. That issue in turn depends on the extent of the Chancellor's power under the search policy.
Under the search policy the search committee gives its recommendations to the Chancellor, not to the board itself. The Chancellor's role, however, is limited. Although the Chancellor interviews the finalists prior to the board interviews and recommends several finalists to be interviewed by the board, the Chancellor appears to lack authority to screen out any of the finalists before the board interviews. Nor does the policy authorize the Chancellor to rank his or her recommendations to the board until after the board has interviewed the finalists.
Thus, in light of the Chancellor's limited role in forwarding the search committee's list of finalists to the board, we conclude that the board, not the Chancellor, is the principal recipient of the search committee's recommendations. Accordingly, a search committee is an advisory group to a "public body," i.e., the board, and hence is a "governing body" the meetings of which are covered by the Public Meetings Law.
V. Proposed Changes in the Chancellor's Role
[T]he key to the applicability of the Public Meetings Law...is that a search committee advises the board, a public body, rather than the Chancellor... If the Chancellor were given greater discretion in the process, then a search committee would be an advisory body to the Chancellor, a single public official. Its meetings, therefore, would be outside the scope of the Public Meetings Law.
To recast the committee as an advisory body to the Chancellor, the Chancellor's role would need to be strengthened in at least two respects. First, the Chancellor would need to be able to use his or her discretion to narrow the field of candidates. In the strongest case, the Chancellor would retain the power to reject all of the candidates recommended by the committee. If so, the Chancellor, not the board, would be the recipient of the committee's recommendations. Second, authorizing the Chancellor to rank all the candidates that he or she recommends to the board would increase the Chancellor's power of review over the committee report, thereby making it clear that the committee advises the Chancellor, not the board. n1
n1 In response to our tentative advice, you have proposed adding the following language to the board's policy statement: "The Chancellor shall interview the committee's finalists prior to the public announcement of the names of candidates to be interviewed by the Board. The Chancellor shall have the authority to narrow the field of candidates, but could do so only after consulting with the search committee. In no case could he or she add names to the list of finalists. The Chancellor shall also have the authority to rank the candidates to be interviewed by the Board."
This language would replace current language in the policy statement that defines the Chancellor's role in the presidential search process. We conclude that, if you expand the Chancellor's role as proposed, the Chancellor would be the true recipient of the committee's recommendations and, therefore, the search committee's meetings would not be subject to the Public Meetings Law.
In sum, search committee meetings would not be subject to the Public Meetings Law if the committee made its recommendations to the Chancellor, and the Chancellor had considerable discretion in acting on the committee's advice.
VI. Executive Session and Exempt Public Records
The AG's office said that the Personal Privacy Exemption and the confidential information exemption both supported keeping the names of candidates out of the public record until the finalists are announced.
Personal Privacy Exemption:
"Because of the potential professional threat to candidates [status at present job, etc.] that could arise from release of their names, we believe that this is a circumstance in which a candidate's name is personal information. For the same reason, we conclude that revelation of a person's status as a candidate for president would constitute an unreasonable invasion of privacy, as those terms are used in the Public Records Law."
Confidential Information Exemption:
The AG accepted OSSHE's claim that the lack of confidentiality would have a negative effect on the number and the caliber of applicants and on the ability of the search committee to operate efficiently and effectively; therefore it found a public interest in confidentiality. However, in order for the exemption to apply, the "searchcommittee would need to ask potential applicants (preferably in writing) whether they want the fact of their application held in confidence. If so, then the search committee would need to obligate itself in writing, within the limits of Oregon's Public Records Law, to consider the information confidential and not to disclose it."