The University of Hawaii Board of Regents may have violated the state’s Sunshine Law by secretly discussing and approving then-President David McClain’s plan to declare that the university is facing a financial emergency. The board’s action reportly took place during an executive session which excluded the public.

McClain’s declaration of fiscal exigency, issued July 28, is seen as a technical prerequisite to layoffs of faculty, a process referred to as “retrenchment”. Layoffs of tenured faculty are rare in U.S. universities, and could jeopardize the University of Hawaii’s academic standing and ability to recruit or retain top quality faculty.

Questions about the legality of the move and whether McClain would have the authority to make his declaration without BOR approval were aired during an open Faculty Congress session and a Faculty Senate meeting which followed yesterday afternoon on the Manoa Campus.

Senate president David Ross told the Faculty Congress that McClain’s action was unexpected.

“It took us by suprise,” Ross said.

Administration officials said the move had been authorized by the Board of Regents, according to Ross.

Ross said he was told, in response to further questions, that the regents’ action came during the closed executive session at their July meeting as part of a discussion of collective bargaining.

Hawaii’s Sunshine Law allows executive sessions that are closed to the public, but only if the matters to be discussed are identified in advance and fall among a limited list of exemptions from strict open meeting requirements.

In addition, the Sunshine Law requires that exemptions, such as those allowing for executive session, must be “strictly construed against closed meetings.”

The Office of Information Practices, in a 2006 legal opinion, held that an agenda must “describe the matter that the board intends to consider with sufficient detail to allow a member of the public to understand what the board intends to consider at the meeting and to decide whether or not to participate in the meeting.” [Opinion No. 06-05]

In the case of an executive session, “OIP advises that the agenda should specify the items to be considered generally, but in as much detail as possible to allow a third party to determine the applicability of the claimed executive meeting purpose without defeating the lawful purpose for which the meeting is being held.”

The agenda for the board’s July 23, 2009 meeting makes no mention of a discussion of financial exigency or a financial emergency.

VIII.
Executive Session (closed to the public): Personnel Actions Related to the Following Positions: (To discuss the following personnel matters
pursuant to HRS §92-5(a)(2))
a. Approval of Tenure for M.R.C. Greenwood
b. Approval of Emeritus Titles
c. Approval of Reappointment of Patricia Bergin to the Mauna Kea Management Board
d. Update on Executive Searches

e. Executive Evaluations
Legal and Real Estate Matters: (To consult with attorneys on powers, immunities, and liabilities pursuant to HRS §92-5(a)(4); To consider negotiations concerning acquisition of public property pursuant to HRS §92-5(a)(3)

f. Negotiations Regarding Acquisition of Real Property, Conduct Assessment Studies on Property Condition, Preparation of Environmental Assessment and Related Due Diligence Efforts, UH Hilo

g. Update by the Public/Private Task Group on the Cancer Research Center of Hawai‘i Research Facility

h. Approval of Service Order to RCUH for Development of the Cancer Research Center of HI i. Status Report on Campus Developments (information only)

Collective Bargaining: (To discuss authority of persons conducting labor negotiations and conducting negotiations pursuant to HRS §92-5(a)(3))
j. Collective Bargaining

Private Donations: (To consider matters relating to the solicitation and acceptance of private donations, pursuant to HRS §92-5(7))

k. Acceptance of Gift and Naming Approval for Donor Recognition at the College of Pharmacy, UH Hilo: J.M. Long Pavilion

In addition, minutes of the meeting do not reflect any discussion or decision regarding fiscal exigency.

Duane Stevens, professor of meteorology and UHPA president, said the faculty union sent a letter to the Board of Regents seeking to further information about the board’s action, noting that financial exigency was not identified as a matter to be discussed at the July meeting.

As of yesterday afternoon, no response received, Stevens said.

The Faculty Senate responded by passing a resolution calling on the university to follow guidelines established by the American Association of University Professors relating to financial exigency and retrenchment.

The resolution also warned that the university risks censure by AAUP if it moves forward without following these widely recognized procedures.

A draft of the resolution is available on the Manoa Faculty Senate web site. It passed with minor edits.

Finally, against a background of persistent questions about continuing growth in administrative ranks and specific concerns about this position, Reed Dasenbrock, vice-chancellor for academic affairs, announced that a search for a permanent associate vice-chancellor for international education has been abandoned, saying he had been advised the search would likely be unsuccessful.