UNC-Chapel Hill filled a top job Thursday. Did the vote violate state law?

One lawyer calls the board's vote to hire a new provost a "rather plain" violation of the state's open meetings act.

Posted 11:18 p.m. Dec 10, 2021 — Updated 6:15 p.m. Dec 11, 2021

Travis Fain

, WRAL statehouse reporter

CHAPEL HILL, N.C. — The University of North Carolina at Chapel Hill's Board of Trustees may have violated state open meetings law when it voted Thursday to fill one of the top jobs in university leadership.

State law forbids public bodies from “acting by reference”– voting on an item identified by number or letter instead of explaining what it is. But it appears that’s what the board did.

When members voted to elevate physics professor and associate dean Chris Clemens to executive vice chancellor and provost, no one mentioned Clemens by name or used the words “vice chancellor” or “provost.” They didn’t even say they were voting to fill a job.

Instead, the vote was “to approve Action 1” with a reference to “personnel matters” that had been discussed shortly before in a closed board session. The provost job had been the subject of much discussion on and off campus, especially after UNC-Chapel Hill’s faculty chair penned an op-ed suggesting Chancellor Kevin Guskiewicz was under pressure to hire a particular person.

Confirmation that Clemens had the job came hours after the Thursday morning meeting, in a formal announcement from the chancellor.

State law says public bodies “shall not deliberate, vote, or otherwise take action upon any matter” by referencing a letter, number or any other “secret device or method, with the intention of making it impossible for persons attending a meeting of the public body to understand what is being deliberated, voted, or acted upon.”

Mike Tadych, an attorney who represents WRAL News and other media outlets in open government cases, said it seems like a clear-cut violation.

“It’s rather plain,” he said Friday. “You can’t vote by reference.”

Gerry Cohen, who spent nearly 40 years as staff attorney and special counsel to the state legislature before retiring, said the vote “seems problematic.” He helped write the law at issue.

"(Saying) 'approval of provost' without listing name or terms likely complies," Cohen said on Twitter. "'Item 1' does not."

Board of Trustees Chairman Dave Boliek said the board routinely votes this way and that there was no intent to hide what was happening.

“Our attorneys tell me there’s not a problem as long as we announce it fairly shortly after,” Boliek said Friday.

UNC-Chapel Hill’s media relations office said the provost vote and one other the board took Thursday “represented action on personnel matters clearly noticed in the agenda to be discussed during closed session.”

The meeting agenda did promise a closed session “concerning the position to be taken in negotiating material terms of an employment contract." But it didn’t say what jobs were under discussion. The agenda also didn’t say members would vote on these matters. That was handled in a section of the agenda labeled simply “other business.”

Anyone following the meeting, which had been scheduled two days earlier, heard a pair of nearly unanimous votes on items described only as actions 1, 2 and 3. There was no discussion, and the votes were followed immediately by a motion to adjourn. The public portion of the meeting, which is archived online, lasted about nine minutes.

The university’s media relations office said in an emailed response to WRAL News' questions that items the board voted on “included confidential personnel information under the State Human Resources Act” and that the “board regularly takes steps to protect confidential personnel information when conducting its business.”

In addition to promoting Clemens, the board named current Chief of Staff Amy Locklear Hertel executive vice provost and moved Christi Hurt, a former interim vice chancellor for student affairs, to the chief of staff role. That was approved in a single vote on items lumped together and identified only as action items 2 and 3.

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