Are UVA’s email meetings subject to FOIA?

As a recent alumna of the University of Virginia, I have no doubt been following the recent controversy over the sudden and surprising ouster of our most recent president, Teresa Sullivan, who was in office for a mere two years before the Board of Visitors, the governing body of the University, decided that she should be removed. The Board has come under fire for the way it has handled the situation; student, faculty, and alumni have banded together and called for the Board to shed more light onto the situation. However, rather than submitting to the cries for more transparency, the Board has only added to the air of secrecy that already surrounded the decision. The Rector of the Board, Helen Dragas, has been cast as the villain in the situation, giving vague answers to the press, while remarking that the University community should not “believe everything you read in the papers…quoted by anonymous sources.” The catch-22 of this phrase, however, is that Dragas has given the UVa Community little to go on other than carefully crafted strings of political discourse.

The University of Virginia is a state institution and the Board claims that the removal of Sullivan had to do with the fiscal policy of the University. There is speculation that the Board was interested in the investment from online education programs, to bring more funds to the school and relieve it of some of its financial woes. UVa is a school deeply entrenched in tradition with an ingrained respect for its founder, Thomas Jefferson, who was himself an advocate of honor and republican ideals. The school has had only eight presidents in its history, most serving for ten years or longer. John T. Casteen, who retired in 2010, served the University for twenty years. It was quite a shock, then, when the UVa community received notice that its first female president was being removed after only two years in office. When that removal seemed to have no clear reason or rationale, the Community was outraged, and cried for more information from the Board.

UVa’s student newspaper, the Cavalier Daily, submitted a FOIA request to receive email messages sent and received by Helen Dragas and her Vice Rector, Mark Kington. The messages revealed that Dragas and Kington had planned to remove Sullivan for some months and had communicated extensively about online education programs. There are accusations that Dragas spoke to each Board member about removing Sullivan over a series of months, rather than holding a formal vote. Dragas herself admits to speaking with each member individually, rather than having a discussion with full Board participation. Many are now arguing that this violates the spirit of the Virginia FOIA, to which the University, as a state institution, is subject. By speaking to each member individually, Dragas avoided FOIA open meetings requirements; any gathering of five Board members or more (the quorum, in this case) requires public notice and an agenda. To remove Sullivan without attracting public notice, Dragas could not hold a formal meeting prior to succeeding to “vote” Sullivan out of office. Former University of Virginia president, Robert M. O’Neil, remarked that “the Board was quite careful in dotting the ‘i’s and crossing the ‘t’s.” O’Neil is, interestingly enough, a First Amendment scholar, was the first president of the Virginia Coalition for Open Government, as well as the UVa president who held the shortest term (five years) before the recent ouster of Sullivan; he, in fact, stepped down from his post after conflict with the Board, making him a relevant source on the recent controversy.

Dragas clearly went about removing Sullivan with specific intent, and while her actions do not technically violate the Virginia FOIA, is it within the spirit of the law? Should Dragas not have gone about this with more transparency? As I wrote about in an earlier blog post, the Virginia Supreme Court was in the process of deciding if emails between elected officials are subject to the FOIA. Well, the Court has decided that these messages do not constitute meetings under the FOIA. By this standard, Dragas was fully within the law to communicate privately to her Board, but she deliberately avoided the necessary requirements for the open meeting requirements of the FOIA. The UVa Community has cried out, seeking answers and information from Dragas and her Board; all the while, however, she has virtually kept silent. The Board even held a meeting this past Monday for twelve hours to select an interim president. This meeting was also closed to the public.

The secrecy of this whole ordeal is technically legal (though there are rumors of taking the debacle to court), but this brings into question some of the FOIA’s requirements. Should officials such as the University of Virginia’s Board of Visitors be able to conduct private “meetings” via email and essentially perform a coup d’état without more input from the broader UVa Community? Should public institutions be subject to different regulations than government agencies? This situation brings about a new perspective on the repercussions of the FOIA and its requirements – it will certainly be interesting to follow this story, as it is likely that a host of information is still to come out.