"Open" Presidential Search Process Can Inhibit Open, Candid Exchange, Trusteeship Magazine, July/August 1997

“Open” Presidential Search Processes Can Inhibit Open, Candid Exchange

by Jeffrey S. Lehman

Trusteeship, July/August 1997

Last year the Regents of the University of Michigan were called upon to fulfill their duty under the state Constitution to select a new President for the University, the twelfth in its 180-year history.  After they had selected the eleventh President, eight years earlier, a local newspaper had sued the Board of Regents, claiming a violation of the state’s Open Meetings Act.  As a consequence of that lawsuit, the 1996 Board had been forced to invent an imaginative but bizarre set of procedures to frame its search.  

The Board named a twelve-member Presidential Search Advisory Committee (the “PSAC”) to work in private, gather information, and then make public suggestions.  It was my privilege to serve as chair of that committee.  In order to ensure that we were purely advisory (and not a “public body” that would itself be subject to the Open Meetings Act), no members of the Board were allowed to serve on the PSAC.  And we were not allowed to talk with the Board about what we were doing, except in public.

At the end of our work, we were required to present the Board with a list of all 300 individuals who had ever been suggested to us as potential candidates, regardless of whether they had ever expressed any interest in being considered.  And we were required to recommend publicly to the Board a slate of finalists who were willing to endure a breathtakingly public final phase, replete with public interviews and “town meetings” and televised deliberation by the Board Members concerning their final decision.

As it was initially designed, the search process authorized two aspects of the endgame that could take place out of the spotlight.  First, Regents were to have the opportunity to ask the PSAC in private why particular individuals did not end up on our list of recommended finalists.  Second, any finalists who so desired were to have an opportunity, after the completion of their public interviews, to meet individual Board members privately and explore their philosophies of university governance.

But in October 1996, three days before the PSAC was to make its recommendations public, the local newspaper took the University back to court, obtaining a preliminary injunction against any residual aspects of the process that might take place without a reporter present.

The Regents soldiered on, and ultimately they selected Lee Bollinger, at that time the Provost at Dartmouth College.  The consensus reaction has been that he was an excellent choice, a leader with the talent and experience to be an outstanding President.  The consensus reaction has also been that each of the other finalists was an outstanding candidate, extremely well qualified for the position.

At the end of the search, the local newspaper expressed satisfaction – with the substantive outcome and with the process that led up to it.  Indeed, it suggested that the former vindicated the latter.  It editorialized that the quality of the finalists “countered doubts that the university could attract a high caliber of candidates within the frame of the state’s Open Meetings Act.”

That argument is, of course, a logical fallacy.  Yet many people have found it seductive.  To resist it, one needs to know much more about the way Michigan’s search played out, and the policy tradeoffs it entailed. 

The truth is, we were extremely lucky to end up with four outstanding finalists who were willing to participate in the final stage of the process.  And, for reasons that will take me a few paragraphs to spell out, the experience of those very finalists with the process we used means we could never replicate that success in the future.

Any search process requires tradeoffs between two very different understandings of what it means for a process to be “open.”  Open, candid, and respectful communication is critical to the recruitment and selection of a good president.  But insisting that all communications to and among decisionmakers be available for publication in a newspaper (what might be called “newspaper-openness”) does not necessarily mean that decisionmakers will enjoy a greater amount of honest and informative communication (what might be called “candor-openness”).  Indeed, it will often have precisely the opposite effect.

Newspaper-openness can stifle communication for a variety of reasons.  And sometimes it is a good thing for that to occur.   For example, it is a good thing if newspaper-openness inhibits people from saying things they know to be unreliable.  (“You shouldn’t make that person your president; I think she is an axe-murderer.”)

But a policy of coerced newspaper-openness has a much more extreme chilling effect, cutting off communication that is essential to sound decisions.  It can inhibit people from saying things they believe to be true, when they fear retaliation.  (“You shouldn’t make my boss your president; he can’t control his temper.”)  It can also inhibit people from saying things they believe to be true, simply because they wish to avoid the limelight.  (Imagine the headline — Presidential Candidate “A Saint,” According to Staff Assistant.)  Finally, and perhaps most significantly, newspaper-openness can inhibit communication when the speaker is unwilling to cause collateral damage to the person being spoken about.  Many references will be less candid if their criticisms (whether attributed or not) might be published.  

For example, one might well like, admire, and respect a coworker while believing that he has traits that makes him wrong for a particular job.  (“I think he’s a good administrator, but only a mediocre teacher.”)  If one fears that a frank discussion of those traits might end up in the papers, one might choose tact over candor.  One might well think it better to see one’s friend receive an undeserved job than to see him publicly humiliated.

The standard practice in executive searches — public and private, government and nonprofit — is to respect the importance of candor-openness.  That is why the final phase of Michigan’s presidential search was such a bizarre aberration.  We had no attractive precedents to look to, and so we were forced to make it up as we went along.

During last year’s search, the preliminary work of the PSAC fit the traditional model: it was candor-open and newspaper-closed.  My fellow committee members were drawn from a wide range of backgrounds.  The committee sought advice from across the university, the state, and the nation.  We did all our work in private, promising to protect the confidences of all those who offered us their candid assistance.  We thus were able to gather a great deal of reliable information, and we were therefore able to develop a great deal of confidence in our conclusions. 

But during the final phase of the search, the Regents were ordered to function in an environment that was newspaper-open and candor-closed.  They were never permitted to “go off the record” with the candidates.  They could not ask these sitting Provosts to candidly appraise the leadership style of the President at his or her own University.  They could not ask the candidates which aspects of the University of Michigan were perceived to be the most troublesome.  If a candidate wished to speak with one Regent about the strengths and weaknesses of a vice president, a sitting dean, another Regent, a previous President, the Governor, or the editor of the local newspaper, it always had to be within earshot of a reporter looking for a “story.”  And when it was time to deliberate, the Regents could not raise a question about a candidate without knowing that their words would be beamed straight to that candidate’s friends and relatives.

But what about the fact that this perverse process nonetheless attracted a set of truly outstanding finalists?   Why didn’t that in some important sense vindicate the process?

The four finalists — Lee Bollinger, Stanley Chodorow, Carol Christ, and Larry Faulkner — are indeed superb people.  But the critical fact is that they were attracted through a process that was newspaper-closed.  Moreover, after the process was concluded, each of the three outsiders to the University told me that, had they been able to fully appreciate what the newspaper-open final phase would be like in practice, they would probably not have agreed to participate. 

For eighteen days, they were the objects of embarrassing, even demeaning, horserace-style handicapping.  For eighteen days, they had to endure misguided suspicions “back home” that their willingness to speak with Michigan implied dissatisfaction or even disloyalty.  For eighteen days, they had to respond patiently to distortions and mischaracterizations of their past actions.  For eighteen days, they were subjected to irresponsibly insulting editorials and letters to the editor.  For eighteen days, their effectiveness in their current jobs was drastically curtailed, because of the uncertainty over whether they would be leaving.

With grace and dignity, they put up with it all, in part because they had trusted me back on October 16.  In the hours just after the lawsuit distorted the final phase of the process, I had asked each of our five recommended candidates to stay in.  I had shared my honest hope that, despite the last-minute distortion of the process, they and the Regents might still be able to get to know one another well enough to determine whether there was a “good fit.”  Under time pressure, they took the gamble.

With the benefit of hindsight, I now believe that my hope was misguided.  So do each of the three finalists who were heretofore outsiders to Michigan.  As one of them said to me, “the process did not permit [the Regents] to have the kind of private interaction and frank, off-the-record, conversations with the candidates that are the necessary basis on which people judge for themselves what to make of public impressions and the comments of referees.”

We are a lucky University.  We are lucky that a person of Lee Bollinger’s quality was willing to go through this process and that in the end the Regents had the courage to offer him the Presidency without ever having had the chance to speak with him privately.  We are lucky that three other people of comparable quality were willing to participate in this experiment in presidential selection, sharing insights and perspectives that will inform our university’s future even though they will not be serving as our President.  We are lucky that they came away from the process with warm feelings for Michigan, even though they would not have gone through that process if they had fully understood it from the beginning.

But we should not mistake luck for skill.  It is now a nationally known fact that, in the endgame, newspaper-openness crushed candor-openness at Michigan.  Our radical experiment was silly, and we escaped by the skin of our teeth.  If by the time we need a thirteenth president we have not moved back to the mainstream — if we have not returned to the traditional processes used by almost all universities, public and private, by businesses, by governments, and by newspapers themselves — I doubt that even luck will be enough to redeem us.

 Dean of the Law School, and Professor of Law and Public Policy at the University of Michigan.  This article is adapted from an Op-Ed piece published in the Ann Arbor News on November 24, 1996.