Memo to LSU: Fire Your Lawyers, Fire Your Executive Search Firm, and Apologize to Judge Clark

When I practiced law years ago, my senior partner gave me three good pieces of advice.

1. Always comply with a court order.
2. Never hide relevant documents that are the subject of a legitimate request in civil litigation.
3. Admit your mistakes and do everything you can to repair the damage.

LSU has acted contrary to all this good advice, and it will pay the price.

Bill Funk
LSU should fire him

This morning, Judge Clark ordered the Sheriff of East Baton Rouge Parish to go to LSU and retrieve documents pertaining to LSU's search for a new president.  Judge Clark ordered LSU to make the documents available to the Baton Rouge Advocate last April. According to Judge Clark, those documents are subject to Louisiana's open records law and LSU cannot lawfully conceal them.  LSU refused to comply and has been in contempt of Judge Clark's order for about four months.

This afternoon, two sheriff's deputies went on campus to get the documents and came away empty handed. LSU claims it has no documents to turn over and that all relevant documents pertaining to its presidential search are in the hands of William Funk and Associates, an executive search firm located in Dallas.

In short, LSU has contemptuously defied Judge Clark's order, acting no doubt on the advice of its

Say you''re sorry, Bobby

attorney, Jimmy Faircloth.  And who is LSU protecting by hiding its presidential search documents?  Bill Funk and his executive search firm, whose business runs more smoothly if candidates for executive jobs can keep their identities confidential.  And you can bet your last dollar that Mr. Funk was paid handsomely to produce LSU's new president, King Alexander.

This is going to end badly for LSU. It made a huge mistake toying with Judge Clark.  What can it do to begin repairing the damage?

First, it should fire Jimmy Faircloth, who gave LSU such bad advice.

Second, it should fire Bill Funk and never again use an executive search firm that insists on secrecy in an LSU executive search.

Third, Bobby Yarborough, the chairman of the LSU Board of Supervisors, should go to Judge Clark's court without an attorney and turn over the documents Judge Clark demanded.  Then Mr. Yarborough

Oh yeah. Fire this guy too.

should personally apologize to Judge Clark, to the students of LSU and to the people of Louisiana.

Imperious, Arrogant and Defiant: LSU Plays the Scofflaw and Refuses to Compy with a Court Order

I sat in Judge Janice Clark's courtroom this morning, curious to see how she would deal with Louisiana State University's continued defiance of her court order. 

The Baton Rouge Advocate and the Times-Picayune sued LSU several months ago under Louisiana's open records law, seeking to obtain the records of LSU's search for a new president. The search ended last March when the LSU Board of Supervisors selected F. King Alexander as LSU's new chief executive.  At least 35 other people applied for the job, but LSU refuses to release these applicants' names.

Last April, Judge Janice Clark issued an order directing LSU to turn over the records of its search, including the names of the other applicants, but LSU refused to comply.




Judge Janice Clark

Instead it tried to get the Louisiana Supreme Court to issue a stay of Judge Clark's order while LSU pursues a leisurely appeal.  The Supreme Court declined to issue a stay, but LSU still won't turn over the records.  LSU accrues a fine of $500 per day for each day it refuses to comply with Judge Clark's order and currently owes about $60,000.

This morning, Judge Clark increased the pressure on LSU to turn over the records. In an order issued from the bench, she directed the Sheriff  of East Baton Rouge Parish to seize the presidential search records and indicated she would issue the appropriate writs and warrants necessary for the sheriff to carry out her order. 

LSU would like Judge Clark to issue a final judgement in the case so it can start the long process of appealing it, a process that could take years.  It wants to continue withholding the records while the appeal is pending.  By the time the appeal process is over, President King Alexander will probably be gone--having left LSU for an even more lucrative job.  LSU could then argue that the whole dispute over its presidential search is moot.

But Judge Clark said today that there will be no further proceedings in the case until the disputed records are turned over.  Meanwhile, LSU continues in contempt of Judge Clark's April order and risks even heavier sanctions being imposed on it--including jail time for recalcitrant members of the LSU Board of Supervisors.

So what's LSU's next move? With the sheriff poised to search LSU's administrative offices (and perhaps even the offices of LSU's attorneys), I think LSU has run out of options. Surely it will turn over the records sometime this week.

LSU Prez King Alexander
Hey, I'm just a bystander

Or maybe not.  But if LSU continues to defy Judge Clark's order, it will only enhance its image as an imperious, arrogant scofflaw.  What a message to send to LSU's students and the people of Louisiana.

As for LSU President King Alexander, he is sitting on the sidelines. He did not appear in court this morning with LSU's attorney. President Alexander could show real leadership if he would tell the LSU Board of Supervisors to obey the law like everyone else in Louisiana is required to do and comply with Judge Clark's order.



References

 Joe Gyan, Jr. Judge: LSU board could face jail time in records case. The (Baton Rouge) Advocate, September 10, 2013, p. 1.

Playing For Time: Who Benefits When A University Keeps Its Executive Searches Secret?

As of today, Louisiana State University has been in contempt of a court order for 115 days, incurring a fine of $500 a day for each day it is in contempt.

As I wrote in an earlier blog, The (Baton Rouge)Advocate sued LSU, seeking to get the university to comply with the Louisiana open records law and turn over the names of people who applied for the LSU president's job. Judge Janice Clark directed LSU to turn over the records almost four months ago.  LSU refused and appealed Judge Clark's order to the Louisiana Supreme Court.  The state's highest court refused to review the order.

But the litigation is not yet over. Apparently, the university is going to pursue a lengthy appeal process, hoping that a Louisiana appellate court will eventually reverse Judge Clark's order. I think this is a forlorn hope.  Ultimately, LSU will have to turn over the records

Why does LSU insist on keeping its presidential search secret?  And more importantly, who benefits from this secrecy?

Executive search firms. First, executive search firms charge tens of thousands of dollars to administer university searches for executive leaders. These firms keep a stable of potential job applicants who are happy to throw their names in the hat for a university executive job so long as their current employers don't find out.  Keeping names secret helps the search firm keep a tidy pool of job candidates on hand for the many searches they coordinate.

University executives. Second, many university presidents and senior executives--provosts, deans, etc.---are constantly on the prowl for new jobs, and they don't want their current employers to know that they are ready to jump ship if a better opportunity appears.  Undoubtedly, some of the 35 semifinalists in the LSU presidential search will be embarrassed when their names are eventually released.

Lawyers. Finally, attorneys make their fees by helping universities skirt the letter of state open records laws.  In LSU's current dispute with The Advocate, the accumulated legal fees will certainly be much larger than the fine that LSU ultimately pays.

LSU plays musical chairs with its chancellors and provosts. LSU maintains that secret executive searches are essential in order to attract the best talent. But how has that worked out for it? LSU has been plagued by a constant turnover of top leadership for the last 15 years.  The university has changed chancellors and provosts so many times that it appears like the Board of Supervisors is playing musical chairs with its executive leadership.

And of course it is the secrecy of the executive searches that enables a little gang of mobile administrators to hop, skip and jump around the United Staes, getting ever higher salaries with every move.

Yes, LSU's secrecy benefits an executive search firm; it benefits a small group of suitcase administrators; and it benefits the attorneys.  But who are the losers?  The people of Louisiana, who are paying for this charade through their taxes.

References

Editorial. 109 days in contempt. The (Baton Rouge) Advocate, September 1, 2013, p. 6B.

The New Arrogance of Our Public Universities: LSU Refuses to Comply with a Court Order

Mark Emmert: LSU Prez 1999-2004
Goodbye, Mark. We hardly knew ye!

Never disobey a court order--this was the advice my senior partner gave me when I practiced law as a young man.  You can protest a judge's order, appeal the order, seek to have the order rescinded, but never disobey. 

And of course this was good advice. The rule of law in the United States breaks down completely if some parties feel free to disregard the rulings of the courts. 

But maybe the old rules no longer apply.  The Baton Rouge Advocate reported yesterday that Louisiana State University refused to comply with Judge Janice Clark's order to turn over the records of LSU's recent search for a new Chancellor, a search that ended last spring with the selection of F. King Alexander. 

Judge Clark ruled that LSU is in contempt of court for refusing to turn over the records, and she fined the university $500 a day until it complies. As of August 14th, the total fine amounts to about $46,000.

Judge Clark's ruling came as the result of a lawsuit filed The Advocate and The New Orleans Times-Picayune.  The newspapers had sued LSU under Louisiana's open records law, seeking to get the records of LSU's Chancellor search process.  The newspapers want to know the names of the other applicants for the Chancellor's job.  According to the Advocate, there were 34 semi-finalists whose names were never revealed.

LSU maintains that these 34 individuals never formally applied for the Chancellor's position.  According to LSU, Alexander was the sole formal applicant, and thus LSU is only obliged to reveal Alexander's name in connection with the Chancellor search process.

This is sheer sophistry. It is ludicrous for LSU to argue that King Alexander, the man who was named Chancellor of LSU, is the only guy who applied for the job.  Without question other people also sought the position.

LSU argues that Alexander was the only applicant in a technical sense under its interpretation of the open records law. But Judge Clark and a Louisiana appellate court rejected LSU's argument, and Judge Clark ordered LSU to turn over the records. Now LSU is obliged to comply with Judge Clark's order.

Why--you are probably asking--does LSU want to hide the names of people who applied for the LSU Chancellor's job? LSU argues that revealing the names discourages good candidates from applying for the position.  If a sitting college president applies for the LSU Chancellor's job and the president's present employer finds out, then the president might find his or her current job in jeopardy.

That is reasonable argument, and many universities across the United States basically take the same position. We must keep our executive searches secret, they say, so we can attract the best candidates.

But look who benefits from this philosophy--college presidents and other senior executives who are constantly trolling for their next job and don't want people to know about it.

On the other hand, don't our universities and other public institutions deserve to know if their leaders are in the job market?  Of course they do.

And here is an example of why it is important for a university to know that its chief executive is looking for a new job. LSU hired Mark Emmert as its chancellor in 1999, hiring him away from the University of Connecticut where Emmert was president.  As a recent USA Today story documented, Emmert left UConn just ahead of a scandal having to do with construction projects.  Emmert stayed at LSU five years and left for the University of Washington, leaving behind a scandal in LSU's athletic program. 

As USA Today pointed out, Emmert seems to have a record of moving from place to place, leaving scandals behind at his former jobs.  "Rightly or wrongly," the USA Today reporter observed, Emmert "has a history of dodging blame in scandals that have festered on his campuses, sometimes moving on to a more lucrative job before the full extent becomes known."

Today, our colleges and universities are experiencing a crisis in moral leadership.  College presidents have basically become fund raisers who are paid exorbitant salaries.  Many are constantly looking for their next gig and an an even bigger pay check.

It seems to me that university governing boards and taxpayers are entitled to know if their executive leaders are shopping around for new jobs.  For one thing, that fact may be an indication the executive wants to leave before a scandal breaks.

There was a time when universities followed the law, but no longer.  Increasingly, they have become arrogant institutions, raising tuition nearly every year, paying their senior leaders fat salaries and benefits, and resisting all efforts to hold them accountable.

I agree with the Baton Rouge Advocate's editorial on this controversy. By refusing to turn over records of its Chancellor search process, LSU has shown contempt not only for a court but for the people LSU is supposed to serve--the people of Louisiana.

Refereces

Editorial. Our Views: LSU Board shows its contempt. Baton Rouge Advocate, August 16, 2013. Accessible at: http://theadvocate.com/news/opinion/6783345-123/our-views-lsu-board-shows

Joe Gyan Jr. Judge fines LSU Board. The (Baton Rouge) Advocate. August 15, 2013, p. 1.

Brent Schrotetenboer. Digging into the past of NCAA President Mark Emmert. USA Today, April 2, 2013. Accessible at: http://www.usatoday.com/story/sports/ncaab/2013/04/02/ncaa-president-emmert-previous-cases-uconn-lsu/2047607/

Rodger Sherman. Mark Emmert failed to oversee at UConn and LSU too, according to LSU Today. SBNation.com.  Accessible at: http://www.sbnation.com/college-football/2013/4/3/4176742/mark-emmert-ncaa-president-usa-today