DETROIT — The manner in which the University of Michigan Board of Regents removed Mark Schlissel as president Saturday has drawn some criticism because it changed the course of the state's largest public university outside the public eye.
Before the regents announced Schlissel's termination, they held an unannounced virtual meeting earlier that day to address accusations the university's leader had an undisclosed "inappropriate" relationship with a fellow employee. Shortly after, the board voted by email to fire him.
UM spokesman Rick Fitzgerald confirmed the regents met via Zoom and voted by email to remove Schlissel and appoint former President Mary Sue Coleman as his interim replacement. The board said in a Saturday statement it would "affirm its decision during the Feb. 17 meeting on the Ann Arbor campus."
Critics, including Sen. Ed McBroom, R-Waucedah Township, who chairs the Senate Oversight Committee, argue that university boards should be held to stricter transparency standards since they operate with taxpayer dollars.
"It simply demonstrates the continued lack of understanding that these boards and administrators have about their duty and obligation to open government, to the taxpayers," McBroom said.
Fitzgerald said in response to questions from The News that the regents' Saturday meeting and vote "were done in accordance with Board of Regents bylaws."
The bylaws say the board may take emergency action between meetings if at least three regents or the university president agree it should be done. "An affirmative vote by telephone, email, or facsimile from five members is required for action," according to the bylaws.
"When the board meets in formal session Feb. 17 on the Ann Arbor campus, the emergency action taken Jan. 15 will be reported in the written proceedings of the board," Fitzgerald added.
Michigan Association of State Universities officials could not be reached for comment.
Most local government entities, such as village, township and city councils, are required by the Open Meetings Act to conduct their business in public. While they can go into closed session to talk about specific issues, including personnel matters, they must vote on those matters in public and must notify the public about meeting dates.
Michigan public universities have often sought to operate outside the Open Meetings Act, although open government groups and others have argued they should comply with the law. The Michigan Constitution gives the state's three largest universities — UM, Michigan State University and Wayne State University — autonomy from state government, including in the selection of presidents by a board elected by state voters.
The issue came to a head in 1999, when the Michigan Supreme Court determined the state Legislature does not have the power to regulate university board meetings that have to do with university presidential searches and selection committees.
The high court ruled 6-1 that universities generally have the power to govern themselves without legislative oversight, allowing them to work outside the Open Meetings Act. Lower courts have since leaned on the Supreme Court's decision to give universities leeway in scheduling informal and formal meetings.
"Given the constitutional authority to supervise the institution generally, application of the (Open Meetings Act) to the governing boards of our public universities is likewise beyond the realm of legislative authority," the court wrote in its decision.
The case, Federated Publications Inc. vs. Michigan State University Board of Trustees, involved a search for a new president after John DiBiaggio resigned in 1992. The search committee's initial round of interviews was unsuccessful; of the four candidates it publicly recommended, one withdrew before interviews, two withdrew after interviews, and trustees were divided on hiring the fourth.
MSU's trustees asked the search committee to reconvene and recommend other candidates, but the committee declined to provide further recommendations. A trustee contacted one of the candidates who had withdrawn, M. Peter McPherson, and asked him to reconsider, which he did. McPherson was interviewed publicly and elected in 1993.
Federated Publications, doing business as the Lansing State Journal and The Detroit News, had argued presidential searches should be open. Only one justice, Marilyn Kelly, agreed with the publications, arguing that the Open Meetings Act applied to the search committee "because it was a public body exercising a government function."
To remove Schlissel, UM regents relied on university bylaws that allow them to take "emergency action" Saturday between meetings and outside of the public's view, UM's Fitzgerald said. The regents had been investigating a complaint against Schlissel since early December.
"Why the weekend?" Michigan Press Association Public Affairs Manager Lisa McGraw said of the regents' vote. "Why via email? All of it doesn't pass the transparency smell test."
Since public universities receive tax money, and the three largest are governed by elected boards, they should be held to stricter transparency standards, McGraw argued.
"If it's funded by taxpayers, it should be available to the taxpayers, and the universities don't seem to operate under that premise," she said.
McGraw also pointed to UM's bylaws, which state "all formal sessions will be open to the public," although they do not provide a definition of a formal session.
"I feel like letting someone go who is in a position like the president was a pretty formal situation," she said. "To not even post it or make notice of it, and then vote by email, it all seems like a bad decision to me."
In 2014, the Detroit Free Press and Federated Publications sued UM, arguing regents' private, informal meetings violated the Open Meetings Act. Regents argued those meetings were informational and that voting took place during formal meetings that the public could view.
A Court of Claims judge and the state Court of Appeals sided with regents, pointing to the Supreme Court's 1999 decision in favor of the MSU trustees.
A three-judge panel of the Michigan Court of Appeals sided with the UM over the Detroit Free Press, which argued the Board of Regents routinely violated the Open Meetings Act, including voting on the vast majority of agenda items with no public discussion.
"The Constitution permits defendant to hold informal meetings in private; defendant is only required to hold its formal meetings in public," the Court of Appeals panel ruled 3-0 in an opinion written by Judge Amy Ronayne Krause. "We are simply not empowered to evaluate whether that is good policy or, for that matter, take any action on the basis of whether we might believe it to be."
McBroom, alongside other legislators, has pushed for a constitutional amendment to make public universities subject to the Open Meetings Act and potentially amend the Open Meetings Act to outline rules specific to university boards.
"Universities, mainly just a couple of them, which could include the University of Michigan, have been extremely difficult in negotiating this particular issue," McBroom said.
"We certainly understand there are some certain nuances that are necessary for the Open Meetings Act to work for the universities, and we have had an open door to sit down and discuss what provisions they need."
