Public records exemptions for Delaware universities to be eliminated under proposed legislation

DELAWARE — The Delaware House of Representatives is considering a bill that could end exemptions for the University of Delaware and Delaware State University under the state’s public records and open meeting laws.

The bill’s sponsor, Rep. John Kowalko (D-Newark South), wants to make the the universities more transparent when it comes to public records and public meetings. Currently, the two universities are only required to release records “relating to the expenditure of public funds.” Full meetings of each university’s board of trustees must comply with the state’s open meetings law.

“This year, enough is enough,” Kowalko said. “There is an epidemic throughout the state of Delaware on secrecy.”

Only one other state — Pennsylvania — has a similar records exemption for publicly funded state universities.

There have been two failed legislative efforts in Delaware to end the exemption. One of the bills, introduced in 1997, didn’t specifically name either university but would have applied the records law to institutions receiving at least $75 million in public aid. At the time, UD was the only institution that would have been affected. More recently, in 2011, the House considered legislation that specifically targeted UD and Delaware State, but the committee tabled the bill.

Officials at UD and Delaware State declined to comment. UD provided a statement that explained that “unlike state agencies,” the university only receives 11 percent of its budget from the state. Both opposed the two previous efforts to end the exemption.

Kowalko said that three instances where UD has balked at responding to records requests sparked his interest in reintroducing the issue. Specifically, he’s concerned about the power plant UD is building on a campus in the middle of his district, the cutting of the UD men’s track and cross country teams in 2011 and an increase in tuition for in-state master’s students (which affected Kowalko’s wife’s tuition).

The power plant’s construction has angered residents. Kowalko said the governor, the city of Newark and UD made the agreement to build the power plant in total secrecy, without the public’s knowledge. UD has rejected his records requests regarding the decision to construct the power plant on numerous occasions, Kowalko said.

“The main concern with the power plant is it promotes a huge unnecessary proportion of fossil fuels, especially in a populated neighborhood,” Kowalko said. “It’s not in line with the university’s policy. They developed the facility for research and student things and the type of industrial entities that allow for student participation — none of that applies to a power plant this size.”

The lack of transparency about the decision to cut the track and cross country teams has also generated public outcry, but the university has provided few answers as to why, Kowalko said. The university claimed that they cut the men’s track and field team for the “purpose of coming into compliance with the Office for Civil Rights’ proportionality test” under Title IX of the Education Amendments of 1972, according to a 2012 letter from Lawrence White, the UD general counsel.

Mike Grieco, whose son, Joe, ran for UD’s men’s track and field for one season before the team was cut, asked for records of the decision to drop the team. Grieco said that White hung up on him on the phone when he called asking for information. Grieco later filed a complaint with the state’s Human Relations Commission, which is still pending.

“What White just gave me were the board minutes which are really so general and generic and there is not information,” Grieco said. “The information that was crucial to a full decision or a competent decision was withheld.”

Carl Shields, a former volunteer coach with UD’s track team, also says that the explanation from UD isn’t satisfactory. Shields has lobbied the university for more information since the decision.

“We would still like to get the information on how the decision was made,” Shields said. “They accept public funds, they’re not open to the public and feel above the law.”

John Flaherty, president of the Delaware Coalition For Open Government, supports the proposed bill and said that currently, too much of what the universities do is cloaked in secrecy.

Because the open meetings provisions only apply to “full” meetings of the trustees, Flaherty said the universities have taken to meeting in committees instead. As a result, Flaherty said, a majority of the important decisions at UD take place in committees instead of as a full board, including the hiring of the university’s current president, Patrick Harker.

“Whether you support or oppose this effort, it is sufficiently important enough to be debated in the full House why that would be a burden or onerous to the University of Delaware,” Flaherty said. “I don’t understand why secrecy is important.”

The legislative session concludes at the end of the month. The bill is currently in committee, and a hearing on it could be scheduled later this month, Kowalko said. Flaherty said there’s a good chance the bill will be tabled, as it was in 2011.

Kowalko said that if the bill doesn’t advance this session, he will rewrite it and keep trying to get it passed.

“You can’t allow yourself to be stalled by a fear of a counteraction,” Kowalko said.

Contact Spoont by email or at (703) 807-1904 ext. 127.