MARQUETTE - As the Northern Michigan University Board of Trustees gets ready to convene Wednesday and Thursday in Marquette, The Mining Journal has received a number of internal emails that provide an inside look into the appointment of NMU Interim President David Haynes.
The emails were obtained through a Freedom of Information Act request.
They reveal that board Chairman Brian Cloyd called for an email vote between himself and three other board members to approve Haynes as interim president.
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PENCE
They also show that Cloyd had prepared a press release stating Haynes was the interim president before a vote had been taken.
In an interview Thursday, Cloyd said the executive committee email vote was meant as a recommendation to the rest of the board. He said when former NMU President Les Wong informed him that he had accepted a position at San Francisco State University, Cloyd and board Vice Chairman Jon LaSalle, of Marquette, informed the rest of the executive committee, which is comprised of Stephen Adamini, of Marquette and L. Garnet Lewis, of Freeland.
"We indicated the president had, in fact, accepted the position. We recommended that we move ahead with David Haynes. We had the vote of the executive committee," Cloyd said. "We had indicated that we wanted to make sure that we let the rest of the board members know this was the direction we were going, because of the immediacy of making the replacement. We got agreement from the rest of the board that we would officially take the vote at the July meeting. We couldn't take a vote until we had a formal meeting."
According to the emails, the press release stating Haynes was the new president was written May 9, the same day the email vote took place.
The emails show that Cloyd sent a first draft of the press release naming Haynes as interim president to LaSalle at 2:16 p.m. May 9, to which LaSalle offered a few "minor changes" at 2:41 p.m. Cloyd then sent the release to Wong and NMU Communications and Marketing Director Cindy Paavola at 4:57 p.m.
Further emails show that an executive committee vote to approve Haynes as Wong's replacement was initiated at 3:22 p.m. that same day, when Cloyd sent an email to board members Lewis, Adamini and LaSalle asking "1) Is there a motion to approve Les's resignation? 2) Is there a motion to approve David Haynes as interim president?"
Lewis made both motions at 3:27 p.m. LaSalle seconded the motions at 5:27 p.m. Cloyd called for a vote at 5:36 p.m. after which Lewis voted "aye" on both motions at 5:50 p.m
LaSalle sent an email to Haynes at 5:55 p.m., congratulating him, just before he cast two "aye" votes at 5:56 p.m.
Adamini never participated in the email vote and never responded in writing to any emails on May 9.
In an interview Thursday, Adamini said he was unaware of the email vote until the day after it took place and that any further comment he had would be made to board members.
Adamini's only correspondence on the approval of Haynes or resignation of Wong obtained by The Mining Journal came at 4:37 p.m. May 10, when he responded to an email from board Trustee Rick Popp, of Northville. Adamini wrote, "The 'appointment' is without legal effect. The Constitution provides that the Board of Control shall appoint the President of the University.
This was just action taken by three members of Board at an unnoticed meeting. An e-mail meeting is not a legal meeting because the participants must all be able to communicate with all the other participants at the same time."
According to Steven Pence, of the Marquette law firm Numinen and Pence, Adamini's assessment of the email vote is correct.
Pence said even if the executive committee's decision to appoint Haynes via email was deemed a Michigan Open Meetings Act violation, the swift action of the board in calling a special meeting May 15 could negate that violation.
The OMA governs the conduct of all public boards in the state, with few exceptions.
"The executive committee ... lacked the power to make an appointment, period, of any type. The Open Meetings Act requires both decisions and deliberations to be made in public - not by emails, by less than a quorum of the board, with no notice," said Pence, who has litigated several OMA cases. "I think it's fair to say that although many of us clearly think Northern hired a fine and qualified new president, the process by which it was accomplished suggests something more than mere irregularities. It suggests that the means by which they got there, there was something about them that they didn't want to share with the public."
According to a 1999 Michigan Supreme Court ruling in which Michigan State University was sued for a violation of the OMA, university boards are not always under the purview of that act, specifically when discussing the hiring of a new president.
However, according to Pence, that ruling does not exclude university boards from needing to comply with the provisions of the act that require all formal decisions to take place in a meeting open to the public, and that require public comment to be allowed at any open meeting.
After questions were raised over the swift hiring of Haynes, Cloyd said he decided to call a special meeting of the board, set for May 15. The meeting did not allow any comment from the public.
Cloyd said during the meeting that public comment was not required.
"Any suggestion that because this was a special meeting, the public had no right to comment is not justified by any reading of the Open Meetings Act that is reasonable," Pence said. "And I don't know of any cases that suggest a special meeting can be treated differently than a regular meeting, period. The act does say that a public body can establish rules on how the public may address the board, the public body, at a meeting, but nowhere does it say you can exclude public comment."
Cloyd said he was told by NMU General Counsel Catherine Dehlin prior to the special meeting that public comment was not required at the meeting.
Pence said he also had questions concerning the ability of the board to go into closed session to consult with Dehlin, which it did for roughly 10 minutes during the May 15 meeting.
The OMA states a public body may go into closed session to "consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have detrimental financial effect on the litigating or settlement position of the body."
The board moved into closed session after voting down a motion to allow people to address the board for one minute each.
Calls for comment to Dehlin were not returned by press time today.
Jackie Stark can be reached at 906-228-2500, ext. 242.