BY FREDA MIKLIN – GOVERNMENTAL REPORTER
Colorado House Bill 21-1051, presently under consideration by the general assembly, lays out the history of the term “sole finalist” in our state. It is now commonly used in the hiring of many top executives for public institutions around the country.
According to the draft law, the Colorado open meetings act, also known as the Sunshine Law of 1972, “requires that a state or local public body hiring a chief executive officer make public a list of all finalists under consideration before making an offer of appointment or employment.” Due to the fact that 1) courts have held that more than one finalist should be named, and 2) the application materials of finalists who are not ultimately selected for chief executive positions in state and local government are thus subject to public inspection, some believe that this requirement “has had a chilling effect on the ability of state and local public bodies to attract candidates” for top positions.
So as to clarify the issue, which has garnered ongoing litigation around the hiring of University of Colorado President Mark Kennedy, the proposed law specifically provides that a state or local public body may name only one “sole finalist” for its chief executive position. However, a recent amendment to the as-yet-unpassed law requires that demographic information, including the “race and gender that has been legally requested and voluntarily provided” by any candidate who is interviewed for the chief executive position of a state or local public body, must be made publicly available.
The Colorado Press Association (CPA) opposes HB21-1051 because “it would allow governing bodies to avoid transparency around hiring chief executives, depriving Coloradans of the ability to effectively monitor elected official’s hiring decisions. By opposing this bill, we are defending the principles of open government and accountability.”
In a recent op-ed in the Jefferson Transcript, one of the newspapers published by CPA President Jerry Healey, the Jefferson County school board was criticized for “depriving the public from any insight into who was considered and why the selected candidate was the best choice three times in seven years,” after it named a sole finalist for superintendent. The op-ed also pointed to the University of Colorado, Colorado State University, and Cherry Creek Schools as having also named only a sole finalist for its top position. The Douglas County School Board was praised for having recently “named four finalists for its superintendent position and announced multiple opportunities for people to meet and hear from the candidates and provide feedback to the Board of Education before a final appointment is made.”
This issue was raised in a continuing public battle that began in 2019 over the hiring of CU President Mark Kennedy, a former Member of Congress from Minnesota who served as president of the University of North Dakota before coming to Colorado. After being named the sole finalist for the position, an “Open Letter to the Regents” with 4,626 signatures, including 434 faculty members, was presented to the CU Regents asking that Kennedy not be hired and for the identity of the other top candidates who were considered for the position. Among the multiple objections to Kenney’s hiring were his “divisive political career” and the lack of participation in the decision by the “campus community.” After a rancorous public meeting at CU’s Anschutz Medical Campus in Aurora on May 2, 2019 during which much multiple speakers, including faculty representative, criticized the selection of Kennedy, he was hired as president on a party-line vote of 5 Republicans to 4 Democrats on the Board of Regents.
A short time after Kennedy became CU’s president, the Boulder Daily Camera sued the Regents for the identities of the other six people who were considered for the position. In 2020, a Denver District Court ruled in the newspaper’s favor, but that ruling was reversed in March by the Colorado Court of Appeals. On April 15, the Boulder Daily Camera filed a petition for review of the decision by the Colorado Supreme Court, citing as one of its reasons, “that exceptions to CORA’s (Colorado Open Records Act) general rule of disclosure must be narrowly construed in favor of disclosure to the public.”