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Mehrdad Kia, a history professor at the University of Montana and member of the UM Advocacy Coalition, advocates for UM's future in late 2016.

The head of the University of Montana's Central and Southwest Asian Studies program is demanding UM publicly post documents related to its process to set program priorities that will influence the future of the flagship.

Tuesday, Professor Mehrdad Kia and lawyer Quentin Rhoades also said that errors in the public process may void recommendations from a task force that evaluated UM programs.

An expert in Montana's open meetings law said they may have a point.

Mike Meloy, who just won a separate public records case against the Montana Office of the Commissioner of Higher Education, said the open meetings law authorizes a member of the public to ask a court to set aside any decision made in a meeting that was closed or for which public notice wasn't given.

Rhoades, who joined with Kia in a letter to UM, said the university's priority recommendations "are derived from a process that didn't involve the public and weren't transparent."

On behalf of other senior faculty and concerned citizens, Kia and Rhoades asked UM to disclose and "IMMEDIATELY" post online more information about how it set priorities for what programs to invest in and which to potentially eliminate or consolidate, including the names of program reviewers, agendas, minutes, and records of votes.

The letter is dated Dec. 1, and Kia and Rhoades held a news conference Tuesday to discuss the request.

UM has had a history of making decisions in secrecy, Kia said, and the call for records and full transparency is designed to alert the new administration of the standards a taxpayer-funded institution must follow.

"It sends a message to the new president and to the new provost that this is a new day at the University of Montana," Kia said.

Incoming President Seth Bodnar takes the helm at UM in January, and a search is underway for a permanent provost. Currently, the president and provost are serving in interim capacities.

In its own report, the task force that made recommendations for campus priorities acknowledged flaws in public participation and also noted its recommendations should be considered a "rough cut" rather than a "blueprint."

In an email, though, UM legal counsel Lucy France said she believes the campus held a legal process and has complied with open meeting requirements.

"We will certainly take a close look at the concerns Mr. Rhoades and Professor Kia seem to be raising and will respond to them when we have had an opportunity to fully consider them.

"From my relatively quick look, I do not see any concerns that would compromise the integrity of the process," France said.

***

In its report, the task force noted transparency was one of its key values. But UM also didn't make critical information available to the public until news outlets, including the Missoulian and Montana Kaimin, made requests for them.

Tuesday, Kia said important data used to inform the recommendations still remains shrouded.

For example, he said his program recently received glowing reports from external reviewers, including one report approved by the Montana Board of Regents.

Yet a couple of UM reviewers gave him different grades, one a four, and one an eight, he said.

So far, Kia doesn't know the identities of those reviewers, so neither he nor anyone else can ascertain their qualifications: "I would like to know, like many of my colleagues, who reviewed my program? Who actually selected these reviewers?"

***

Last week, the task force reported its recommendations, and the president will make decisions based on them.

The public will have other opportunities to comment on them, but it's possible UM also might have to start the process over again, according to Meloy, who is not involved in this dispute.

"Failure to give notice of its meetings can serve as a basis for a court order setting aside any decision made in the closed session," Meloy wrote in an email.

"Although the Supreme Court has not addressed the issue, I would expect it would affirm a court order setting aside a series of decisions if the plaintiff could show a continuous pattern of failure to give proper notice of meetings.

"The result, of course, would be to require the government to start over and have all of its meetings properly noticed and open to the public."

Meloy said he believes the UM president does have the authority to make decisions absent any prioritization process. "But if the plaintiff could establish that those decisions were based on recommendations formulated in closed meetings, the president's decisions could be set aside, as well."

The lawyer noted the Legislature hasn't required meeting notices, but "the Montana Supreme Court recognized early on that Article II, Section 9 of the Constitution and the open meetings law require government meetings to be open."

"Absent notice, government has effectively closed a meeting and violates open meeting and right to participate requirements," Meloy said.

***

In its own report, the task force acknowledged it "failed to meet benchmarks" of its own, such as "not posting agendas 48 hours in advance, limiting the ability of those outside the task force to fully participate."

UM's France, though, argues the university is still in compliance with Montana's open meeting requirements. She said the president has the authority to make decisions about which programs are fiscally sustainable, but has chosen to seek input from a task force.

And she said the task force didn't make significant decisions at meetings that weren't noticed in advance.

"I believe that the task force report noted that it did not fully adhere to its own framework that it set out for itself in every respect. The example it noted was that it did not post every agenda 48 hours in advance. I do not believe that it failed to post agendas.

"Open meeting laws do not contain any explicit notice requirements. The notice requirement as it pertains to open meetings is derived from Montana’s public participation laws. The notice requirement attaches only when an issue of significant public interest is going to be discussed. The term 'significant public interest' is not defined in the context of open meeting laws.

"Generally, a 'ministerial' decision or action is not required to be noticed. Also, the amount of notice is tied to the relative significance of the decision to be made,'' France said.

*** 

In the letter to France, though, Rhoades notes that the record online documenting the process is incomplete, with many missing meeting minutes, evidence of unnoticed meetings, and anonymous voting.

For example, "the records online start on May 18, 2017, but on April 17, 2017, the Provost wrote that 'the task force has met twice in the past 10 days' and it presumably met several times in the next month prior to May 18, 2017, so there are other agendas and minutes missing from the UM website," the letter said.

Task force members used clickers to vote, and the letter also raised a concern about that method: "Anonymous voting on programs appears clearly inconsistent with the public's right to observe the deliberations of public bodies.

"If no record of these votes is available, the decisions of the ... task force would likely be void for violation of open meetings and public participation law."

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Higher Education Reporter

Higher education / University of Montana reporter for the Missoulian.