A state district judge refused Tuesday to order LSU’s Board of Supervisors to make public the names of 35 candidates for the recently filled position of president and chancellor, rejecting a petition by the editor of LSU’s student newspaper.
Judge Timothy Kelley agreed with the attorney for the university that the 35 candidates were not formal applicants for the position and therefore were not subject to disclosure under the state’s public records laws.
Kelley referred to F. King Alexander, who was eventually named to the job, and to 10 others who responded to advertisements for the position and were the only others identified as “applicants.” Those 10 names had previously been provided to the news media.
“I have heard of only 11 formal applicants for the position,” Kelley said in issuing his ruling. LSU’s Board of Supervisors “did not in any way violate the law.”
Tuesday’s decision by Kelley came five days after District Judge Janice Clark ruled the names and other materials from the 35 finalists requested by reporters for The Advocate and The Times-Picayune were public record.
LSU’s Board of Supervisors has vowed to appeal Clark’s ruling to the 1st Circuit Court of Appeals.
Scott L. Sternberg, an attorney for Andrea Gallo, editor-in-chief of The Daily Reveille, had argued at Tuesday’s hearing that any candidate who made an “affirmative step” in responding to letters or advertisements qualified as an applicant.
The 35 names requested were put on a secure website viewable by members of the Board’s search committee, Sternberg argued. That made them documents used by public officials in a public capacity and therefore subject to public records requests, he argued.
Jimmy Faircloth, who represented LSU, said the 35 had not formally applied for the position and in fact, some had expressed only a willingness to learn more about the position.
Kelley quizzed Sternberg on that point.
“How are they an applicant if all they are saying is give me more information?” he asked.
Sternberg said if a candidate provided materials to the board’s search consultant, then that person became an applicant.
“If a person is an active candidate, that is synonymous with applicant,” he said.
Faircloth argued that the only applicant for the position was Alexander, who eventually was named to the job.
“The committee vetted recruits or prospects or candidates or whatever you want to call them,” Faircloth argued. “Applicant has a common meaning — one who fills out an application.”
Faircloth said when the search committee engaged a consultant, R. William Funk and Associates, they were advised that confidentiality of candidates’ names was crucial to attracting a qualified pool of prospective hires.
Funk testified that maintaining the privacy of candidates was crucial to his business.
“Confidentiality is the most important currency that we have,” he said. “Nearly everybody we approach will ask if it’s a confidential search.”
When informed that their names will be public record, many candidates ask not to be considered, Funk said. He added that many candidates had not expressed an interest in the position, but were nominated by third parties.
Blake Chatelain, who chaired the search committee, said Alexander was the only one who rose to the level of applicant.
“He was the only candidate that went through the process of a background check, Lexis Nexis search, checking references,” he said.
The LSU Board of Supervisors did not want to release the names of the candidates to protect them in their current jobs, he said.
“The top candidates were all sitting presidents or chancellors,” Chatelain said.
Chatelain also said he could not say how many of the names the search committee reviewed on the website had submitted materials to Funk or who had been recruited by Funk.
“I considered them potential recruits,” he said.
Kelley addressed the matter of conflicting rulings from him and Clark in similar cases at the end of Tuesday’s hearing, after summing up his reasoning. He appeared to take a shot at Clark’s ruling, which came in the form of a minute entry, with no explanation.
“Now we have an interesting situation for y’all to take to the 1st Circuit,” he said. “But at least I have given you reasons for mine.”
Gallo, speaking after the hearing, said she had not decided whether to appeal.
“I need to talk to Scott about how it would work,” she said. Referring to the suit by The Advocate and The Times-Picayune, “I don’t care how the information is obtained, so long as the names are released to the public,” she said.
Gallo sued the Board of Supervisors as an individual because the Reveille, as an LSU-sponsored paper, can’t sue the university. Sternberg and his co-counsel, Rachel Flarity, are working pro-bono, and the Society of Professional Journalists had donated $3,000 to cover costs, Gallo said.