FAU presidential search ‘fully complied’ with Sunshine Law, lawyer says

A now-halted Florida Atlantic University (FAU) search for its next President operated within the bounds of state law and should be allowed to conclude, according to constitutional lawyer and former Rep. Barry Richard.

In a July 17 letter obtained by Florida Politics, Richard addressed concerns that State University System Chancellor Ray Rodrigues raised earlier that month over a straw vote FAU’s search committee held in recorded, closed-door meetings.

There is ample case law proving the committee acted properly, Richard said, as well as provisions in Florida’s Constitution and statutes supporting those decisions.

“(It) is my opinion the procedure fully complied with the law,” Richard told FAU Vice President and General Counsel David Kian.

At all times, Richard said, FAU search committee members:

— Had access to all candidates’ names and credentials.

— Were free to discuss and vote for any candidate.

— Had no knowledge of any other member’s preferences until a consultant summarized the results of his review of surveys to all members at the same time in a recorded meeting.

— Did not discuss candidates except during recorded meetings.

All the committee’s meetings were recorded, he said, and all recordings and survey responses were preserved in accordance with state law.

FAU’s search for a replacement of former President John Kelly, who stepped down at the end of last year, ramped up in May with the first meeting of the FAU Presidential Search Committee.

The group met through July, when it narrowed down a list of 63 applicants to three finalists: U.S. Navy Academy Superintendent Sean Buck, Florida State University College of Business Dean Michael Hartline, and Joseph Sartarelli, a former University of North Carolina Wilmington chancellor.

But on July 7, two days shortly after the committee released its shortlist — which did not include Gov. Ron DeSantis’ preferred person for the job, Palm Bay Republican Rep. Randy Fine — Rodrigues froze the search amid rumors of “anomalies” in the process.

Rodrigues said he’d gotten word that at least one candidate was asked to complete a questionnaire about his gender identity and preferred pronouns, a potential violation of U.S. Equal Employment Opportunity Commission regulations.

During a meeting last week about presidential search, FAU board of trustees Chair Brad Levine said the search firm the school hired, AGB Search, distributed a “voluntary survey” the firm uses to determine diversity of applicant pools. He denied the committee or university knew such questions were being asked of candidates at the time and stressed the answers received were not part of the selection process.

Richard’s three-page legal analysis of the search did not include an opinion about AGB’s gender- and sex-related survey, which Rodrigues said State University System Inspector General Julie Leftheris is investigating.

Rather, Richard’s opinion focuses on whether the FAU search committee’s meetings, surveys and unofficial votes in any way violated the state’s “Sunshine Law,” a long-standing rule meant to ensure transparency by making most government meetings and records open to the public.

The law is codified in both the Florida Constitution and state statutes. In the former, it is stated that all meetings “of any collegial public body of the executive branch of state government or any collegial public body of a county, municipality, school district, or special district at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and notified to the public.”

However, lawmakers in 2022 enacted a measure exempting from public notice and attendance “any portion of a meeting held for the purpose of identifying or vetting applicants for president of a State University or a Florida College System Institution” in which there is sharing and disclosure of applicants’ “personal identifying information.”

The measure also makes clear that a “complete recording must be made” of any part of a meeting that is closed to the public, though that portion is also exempt from public disclosure.”

That’s exactly what took place during the FAU committee’s search, Richard said, based on “facts (Kian) supplied” to him.

The committee met first May 19, and the meeting was closed and recorded, pursuant to state law. A consultant from AGB Search provided a summary overview of the candidates, after which members of the committee discussed them. Then the consultant gave each member an electronic preference survey on which to list six candidates they were most interested in interviewing, ranked numerically.

“Neither the consultant nor the members shared a member’s survey responses with any other Committee members,” Richard said, adding that the survey responses “were preserved by the consultant.”

The consultant determined that more than 20 candidates had appeared on the list of at least one committee member and, at the next meeting on June 6, presented a complete list of all such candidates to the members for discussion. They then cast recorded votes for the semifinalists to be interviewed.

References to a “collegial public body” in the Constitution and “board or commission” in state statutes “make clear that the Sunshine Law is intended to apply to multi-member bodies whose authority is exercised as a group,” Richard said.

“Thus, a meeting between a non-member of a board,” he continued, referring to the consultant, “and a single member will generally not be held to be a violation of the Sunshine Law even if official business is discussed.”

To support that opinion, Richard invoked Rowe v. Pinellas Sports Authority, Sarasota Citizens for Responsible Government v. City of Sarasota and Finch v. Seminole County School Board as examples.

“Any other interpretation would make no sense,” he said. “If every time an individual government officer met with another individual to discuss public business, the meeting had to be notified, minutes had to be taken, and the meeting kept open to the public … the ability to conduct routine government business would be seriously impeded.”

He also noted the Florida Supreme Court recognizes an exception where a non-member of a board meets “seriatim” — to go over a series of questions, concerns or issues point-by-point — with multiple members of the board, passing information from one to the other and thus creating a de facto meeting.

Such was the case with Blackford v. School Board of Orange County, he said, but not with the FAU search.

“That did not happen here,” he said. “In his private interactions with members of the Committee, which consisted primarily of the Consultant receiving the Committee members’ electronic submissions of their preference list, the Consultant never passed on to a member what any other member had told him.”

Richard also dismissed as unfounded a suggestion Vikki Shirley, General Counsel to the Board of Governors, made to Kian that the survey responses could amount to an unrecorded vote.

“The survey responses were not binding and did not eliminate any candidates from consideration or limit the candidate for whom Committee members could vote,” he said. “Moreover, even if they were deemed votes, they would be in compliance with Florida law. The Sunshine Law doesn’t prohibit written ballots per se. It only prohibits secret written ballots when the law requires an open meeting.”

Case in point, he said, is Basset v. Braddock, a 1972 Florida Supreme Court decision that determined a secret, written ballot of school board members taken before an open meeting “would not affect the validity of a subsequent public vote.”