USC president search skirts FOIA

Published July 2019

By SCPA Attorney Jay Bender

Well, this is a fine kettle of fish. The group that hired a president who treated public money as a slush fund, then replaced him with a president who moved out of the president’s residence in a marital dispute with his wife, is now bowing to political pressure to hire a new president who was previously rejected at the end of a search that cost about $200,000 and didn’t produce a candidate who could get enough votes to be selected.

The group, the USC Board of Trustees, was told by Gov. Henry McMaster to jump, and on the way up, many asked, “How high?”  McMaster directed the board to meet to hire a retired Army general who seems to have connections to Donald Trump (said to have been on the short list to be National Security Advisor).

Retired Army Gen. Robert Caslen was Superintendent at West Point, and since retirement has worked at a Florida university, but fared poorly in his meetings with faculty and students after being named one of four candidates under final consideration for the position. And, in a move unseen since the protests over the Vietnam War, students and faculty rallied to express their opposition to Caslen.

None of the four candidates could marshal a majority of votes, and the trustees announced the commencement of a new search. The school year ended, students and faculty left town, McMaster pounced.

A trustee meeting was announced by email with three day notice of the meeting and the agenda. That notice, assuming the notice was also posted and provided to news media, would have satisfied the FOIA meeting notice requirement.

McMaster’s train was derailed when trustee Charles Williams, one of several attorneys on the board, obtained an injunction from Circuit Court because the notice was not in compliance with a specific notice statute for university trustees.

A new meeting has been announced satisfying the statutory requirements, but at least one trustee has suggested that a candidate not in the group from which the final selection was to be made might be selected.

The FOIA requires a public body, such as USC trustees, to make available upon request all materials collected in a search to fill a position for those applicants in the group from which the final selection is made provided the group is not fewer than three persons.

In my opinion, that provision cannot be satisfied unless there is a search with at least three persons under final consideration. Since the trustees announced after a public vote that a new search would be undertaken, any action to commence a new search would require a public vote at a duly convened public meeting. There does not seem to have been such a vote.

If there was a public vote to undertake a new search, any winnowing of the field of applicants would require a public vote.   No public vote seems to have been taken to narrow the field.

McMaster has a solid record on FOIA compliance as both Attorney General and Governor, but for whatever reason has led the USC trustees into a quagmire from which they may be unable to extract themselves without heeding the message of the General Assembly that it is vital in a democratic society that public business must be conducted in an open and public manner.

The way this fiasco has played out, any president selected in this likely unlawful manner will begin a tenure accompanied by the aroma of rotting fish.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

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