Florida Attorney General’s opinion is sought in FAU presidential search

Scott Travis, South Florida Sun-Sentinel
·4 min read
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The growing statewide interest in the Florida Atlantic University presidential search could soon extend to the state Attorney General’s office.

The Board of Governors for the State University System plans to consider a request Friday to ask Attorney General Ashley Moody whether a process to narrow presidential candidates complied with the state Sunshine Law, which governs open meetings.

It’s the latest wrinkle in a search process that the Board of Governors abruptly halted July 7 after Ray Rodrigues, chancellor of the State University System, questioned “anomalies” in the search process. Critics say the search was upended because State Rep. Randy Fine, Gov. Ron DeSantis’ pick for the job, was not among the top three finalists.

Most search committee meetings were held behind closed doors, as required by a 2022 state law, but all actions still must be properly recorded, Rodrigues argued in a July letter to Brad Levine, chairman of the FAU search committee and Board of Trustees. He questioned FAU’s use of a “straw poll” to narrow down a list of nearly 60 applicants to about 20.

FAU search committee members told a search firm consultant their top picks, but those votes were not shared with other committee members. Search committee members were aware how others voted when semifinalists and finalists were selected.

“The committee members’ selections and rankings were not disclosed on the record and there was no meaningful opportunity for the search committee members to discuss candidates prior to the straw poll,” Rodrigues wrote in a July 7 letter to Levine.

The board item for Friday seeks a legal opinion from the Attorney General “whether a committee governed under the Sunshine Law can use a preference survey that is conducted off the record, outside of a meeting, and anonymously submitted by the committee members to a third party, in order to streamline discussions, is consistent with the requirements of the Sunshine Law,” according to the agenda item.

The guidance will help the board determine whether a regulation related to presidential search and selection should be amended, according to the agenda. It could also be used as part of an investigation into the FAU search process by Julie Leftheris, inspector general for the Board of Governors.

Whether this request will delay that investigation is unknown. Levine said last month that the Board of Governors investigation was expected to take 120 days, which would have it end by mid-November. The inspector general’s office is in the process of conducting interviews now.

There have been differing legal opinions as to whether the selection process adhered to state law.

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When it comes to open meetings, the Sunshine Law doesn’t allow secret votes. Will Spicola, a Tallahassee attorney who specializes in constitutional law, told the South Florida Sun Sentinel the same rules would apply for meetings in the shade.

“The exemption is just so that the applicants’ employers aren’t alerted to what’s going on,” he said, adding committee members “still have to be accountable for the decisions they made.”

But FAU got a legal opinion from another constitutional lawyer, Barry Richard, of Tallahassee, who maintains FAU fully followed the law. He wrote in a July 17 letter that search committee members are allowed to speak privately with the search firm without having to adhere to the requirements of the Sunshine Law.

“Any other interpretation would make no sense,” he wrote. “If every time an individual government officer met with another individual to discuss public business, the meeting had to be noticed, minutes had to be taken, and the meeting kept open to the public. … The ability to conduct routine government business would be seriously impeded,” Richard wrote. “The Consultant was not a member of the search Committee and never met with more than one Committee member at a time.”

Richard also wrote that the communications search committee members had with the consultant were preserved. The fact that their preferences “were not made at the Search Committee meeting is not significant since the meeting itself was confidential.”

In addition to the Sunshine issue, Leftheris is also reviewing a search consulting firm’s decision to conduct an anonymous survey, without FAU’s knowledge, asking candidates diversity information, including about their sexual orientation and gender identity.

The Board of Governors meeting is scheduled for 2 p.m. Friday on Zoom. To watch, go to the Board of Governors website, at flbog.edu.