KSU outsourcing presidential search to private company keeps records private

By Madeline Winer

Ohio case law has historically rejected the tactics Kent State has used in delaying the release of records related to the presidential search.

Kent State has kept private applications submitted by those who applied to succeed President Lester Lefton next summer, citing that the records are in the hands of a private contractor.

John Carey, chancellor of the Ohio Board of Regents, said keeping the process confidential for a period of time helps the Board of Trustees and the presidential search committees at public universities find the best candidates.

“One of the reasons that’s done is that the university wants to get the best applicants possible and applicants don’t want to jeopardize their positions at their institutions,” Carey said. “Typically its one of the decisions the board of trustees makes, and they do take a lot of time to find what they’re looking for in the next president.”

Carey added that the board has a responsibility to vet the candidates to make sure they have the confidence in the candidate, and they can support him 100 percent.

But in the case of the Cincinnati Enquirer v. Shirey, which ruled in favor of the newspaper, the city manager of Cincinnati tried to keep some records private.

Committee updates

The presidential search committee met Monday at the Twinsburg Academic Center.

University spokesman Eric Mansfield said the committee is scheduled for two more meetings — one Dec. 2, and another during the week of Dec. 9, if it can be scheduled around the members’ finals week schedules. Mansfield could not confirm where the meetings would be held.

Charlene Reed, chief of staff and secretary to the Board of Trustees, said the board’s executive session at last Friday was for the purpose of considering the employment and compensation of a public employee or official. She said no further information is available beyond the permitted purpose of the executive session. Minutes from the meeting will be approved at the board’s Dec. 4 meeting.

The University of Akron’s board of trustees tapped R. William Funk to help find candidates to be the university’s next president. The Dallas-based search firm was also hired by The Ohio State University to assist in finding candidates to be its next president. The board has authorized the university’s legal department and its director of purchasing to work with R. William Funk & Associates to finalize contract details.

The Enquirer requested that Shirey provide access to “all documents” pertaining to applications for the safety director’s job, including resumes and names submitted for the position.

Shirey provided the newspaper two documents related to the city’s recruiting efforts for the position. Initially, he denied the requests for other records on the grounds they were in the possession of private search consultant, Hubert Williams, and that the firm had designated them as trade secrets.

Last week, Kent State spokesman Eric Mansfield, said applications for Kent State’s next leader are in possession of private search firm, Storbeck/Pimentel & Associates in Media, PA. Kent State’s legal department has not denied the Daily Kent Stater’s request but said they are unavailable.

“We are pleased with the search firm we have,” Mansfield said in an interview Tuesday. “The search is moving forward, and when the search firm provides these documents to the university, we will make them available to the student media to fulfill the public records request.”

John Griener, lawyer for the Enquirer on the Shirey case, disagrees with Kent State’s approach to the public records request.

“Sounds like they are doing the same thing,” said Greiner. “That’s ridiculous that they obtained a search firm to act as an agent.”

After being issued a court order for the documents, the search consultant in the Enquirer case provided copies of the top twenty and top eight list of candidates for the position with resumes and supporting documents destroyed prior to the paper’s request.

Greiner said while this case has been upheld, the 2006 case of the Oriana House v. Montgomery provided a test to decide whether the law allows privacy for public documents in the hands of a private firm.

The test depends on:

  • Whether the entity perform a governmental function
  • The level of government funding
  • The extent of government involvement or regulation
  • Whether the entity was created by the government to avoid the requirements of the Public Records Act

    The 2001 case of the Plain Dealer Publishing Co. v. the city of Cleveland established that resumes received by a private executive search firm hired to find candidates for a city post are public documents.

    David Marburger, the lawyer who represented the Plain Dealer, said since both the city of Cleveland and Kent State are public bodies and employ civil servants through taxpayer dollars, applications for its employee positions are to be open to the public.

    “These are being gathered on behalf of Kent State, and they’re using taxpayers dollars to hire them,” he said. “It’s a convenience for them to say that the resumes are property of the search firm.”

    Kent State also claims “records provided by SPA to the University remain the property of SPA,” in its contract with the search firm. It states the firm considers candidate documentation confidential “proprietary information and trade secrets,” which can be restricted under Ohio law.

    “I don’t care if there’s trade secrets — they need to turn them over with trade secrets redacted,” Greiner said. “Honestly, I don’t think anything about them is a trade secret.’

    In the Cincinnati Enquirer’s case, the court ruled resumes and supporting documentation for the safety director position were not exempt trade secrets, as found by the Toledo Blade Co. v. University of Toledo Foundation. The court ruled “the protection of competitive advantage in private, not public, business underpins trade secret law.”

    “To be a trade secret, it has to reveal something that if a competitor saw it, it would hurt Kent State’s chances,” Marburger said.

    He said trade secrets are genuinely confidential, and if applicants have a reference list or tell people they are applying for the job, it is no longer secret.

    “The test is,” Marburger said, “if the resumes were disclosed would that invoke a competitor of Kent State to gain a business advantage over Kent State? The answer is no.”

    Kent State disagrees as search committee chair Richard Marsh said at an open forum Aug. 20 the committee is accelerating the process due to the competitive marketplace in Ohio as three Ohio schools–The University of Akron, The Ohio State University and Kent State–are conducting presidential searches.

    Contact Madeleine Winer at [email protected].