The University of Arkansas, Fayetteville has fired and hired an athletic director and a football coach in the past month -- but how it got to each point is hazy.
The university called on a nonprofit foundation that supports UA athletics to pay for the dual-running searches, and it brought in two private search firms to evaluate candidates -- arrangements that have kept information such as whom the university considered for the jobs and the cost of the shakeups from public view.
The UA also instructed one of the search firms to take specific action that would keep its records from public inspection and engaged its deposed athletic director in an agreement that limits what he can say publicly.
The Razorbacks last week announced that Hunter Yurachek would replace Athletic Director Jeff Long and that Chad Morris would succeed Bret Bielema as football coach. Long and Bielema were fired nine days apart in November during the late stages of the football team's 4-8 season.
Yurachek will command a department that, while self-sustaining, is a roughly $120 million-per-year piece of the public university. Morris, now Arkansas' highest-paid public employee, leads a team that garners intense scrutiny in a state without a professional franchise.
The donor-supported Razorback Foundation and the firm Korn Ferry, which the university retained to vet potential successors for Long, have declined Arkansas Freedom of Information Act requests for records related to the changes.
Among the documents the Arkansas Democrat-Gazette unsuccessfully sought are two agreements between Bielema and the foundation regarding his reported $11.8 million buyout -- one signed before his termination and one after -- and the foundation's contract with DHR International, the search firm used to evaluate candidates to replace Bielema.
The Democrat-Gazette also sought notes, working papers and other records maintained by Korn Ferry in its work vetting potential athletic director candidates for the university.
The newspaper argued that those records, even if not in possession of a public agency, amounted to public business and should be released.
Razorback Foundation Executive Director Scott Varady, in an emailed response, said the newspaper's open-records requests to the foundation are "invalid" because the organization does not receive public money. Korn Ferry -- paid with private money, according to the university -- provided applications it received from candidates but ignored other aspects of a broader request.
A 27-year-old Arkansas Supreme Court decision says the Arkansas Freedom of Information Act applies to private groups that are conducting "public business."
John Tull, general counsel for the Arkansas Press Association, said the Razorback Foundation has long been a "bone of contention" for public information advocates, but he's not aware of any lawsuit filed against the foundation seeking documents. The degree to which Arkansas open-records laws could apply to the foundation is unresolved, he said.
At least 11 other states, by court ruling or state law, have subjected university foundations to open-records requirements to different extents, according to The James G. Martin Center for Academic Renewal, a conservative-leaning nonprofit institute based in North Carolina.
In Nevada, for instance, state law considers university foundations to be public agencies, while courts in Iowa, Kentucky and South Carolina have found that such groups are subject to open-records laws even if they are not technically public entities, according to an April posting by the institute.
UA released several documents to the newspaper in response to open-records requests, such as contracts with Bielema and Long, offer letters to Morris and Yurachek, and its $75,000 contract with Korn Ferry. It does not have copies of Bielema's buyout agreements or the contract with DHR International, according to university officials.
"It was never the university's intent to conduct a search in 'secret' as you have characterized, it was to locate the most qualified candidates for the position while respecting their personal privacy rights," university spokesman Mark Rushing said in response to emailed questions.
Searches for academic positions in the university have sometimes warranted search firms, which release names of all applicants before finalists are chosen. Once the university whittles down finalists, they are each invited to the university for on-site interviews, which typically include a public forum.
The university's athletic searches, while different from its academic ones, are similar to those conducted at peer universities, Rushing said.
"The difference in timeframes is notable in that academic searches often have more flexibility -- a search process taking two or three months is not uncommon -- while athletic searches often are completed in weeks or even days," Rushing said.
When UA gave the boot to Bielema, Chancellor Joe Steinmetz said in an interview that the university would not use a search firm to look for replacements for either the athletic director or the coach -- only to reverse course and announce some four days later that it, in fact, was partnering with two.
When the newspaper asked for job applications of athletic director hopefuls, the university initially said that "in the event applicant information has been submitted, each applicant is entitled to seek an Attorney General's opinion regarding release of those records."
Under law, job applications are subject to the state's Freedom of Information Act, and only the release of personnel records can warrant an attorney general's opinion.
To date, the applications for athletic director that Korn Ferry disclosed had been submitted mostly by potential candidates without similar work experience. "First off, please let me state that this is not a joke," a U.S. Air Force organizational superintendent wrote when submitting his resume.
Area and national media, citing anonymous sources, had reported specific names that the UA was said to be considering, such as Auburn head coach Gus Malzahn and Tulsa Athletic Director Derrick Gragg. One television station even erroneously reported the hiring of Gragg.
The newspaper has also not received the contract with DHR International and does not know how much the Razorback Foundation spent on the search that landed Morris.
Bielema and Long are due more than $16 million in total severance pay -- commitments that would be offset if they find jobs elsewhere -- according to previous reporting. And the university signed their successors to contracts worth more than $25 million combined over the life of their agreements.
Morris, who signed for a $3.5 million base salary over six years, will be the state's highest-paid public employee, according to an online Arkansas Democrat-Gazette database. Yurachek, at $850,000 for five years, will rank seventh. A mixture of athletic department revenue and private money will cover their salaries.
University foundations, which date back to the '80s and '90s, have increasingly taken on work that once fell under the purview of public institutions -- to the detriment of open information, said Alexa Capeloto, author of a 2015 study on how various states govern whether such agencies' records are public or private.
"This is work that used to be done by a public entity in a public arena," said Capeloto, an associate professor of journalism at the John Jay College of Criminal Justice at the City University of New York. "Now because those functions have moved into a private realm, suddenly we can't get the same information. Nothing has changed about the activity. It's just the arena."
The Democrat-Gazette in its request to the Razorback Foundation argued that the promise of Bielema's buyout was central to both his employment as the state's highest-paid public employee and the university's ability to terminate him for "convenience," therefore qualifying the agreement as public business.
Bielema's contract with the university referred to his deal with the foundation but did not detail it, so it's unclear what was promised to the coach and when. Area and national media reported that Bielema's buyout was set at $11.8 million; the university has not provided documents to verify that reporting.
Regarding the search firm's contract, the newspaper argued that it is the university's job to evaluate potential employees, making it public business. The university, not the foundation, hires and fires its employees.
The newspaper cited City of Fayetteville v. Edmark, an Arkansas Supreme Court case decided in 1990, while requesting records from the Razorback Foundation and Korn Ferry -- the firm tasked with vetting athletic director candidates.
"When the state or a political subdivision thereof seeks to conduct its affairs through private entities, it seems clear that those entities are for all practical purposes the government itself," the court wrote in that decision. "It should not matter whether the activity is 'proprietary' or 'governmental' in nature, for in either case the government is involved in the 'public business'."
Varady, the Razorback Foundation's executive director and former associate general counsel for the university, responded that the citation was "inapposite," or out of place, because a law firm at the center of the case received $400,000 to perform legal services for the city of Fayetteville.
"In contrast, the Foundation is an independent, private non-profit corporation that receives no public funds from any public entity," Varady wrote. "Moreover, unlike the facts in Edmark, the Foundation -- independent of the University of Arkansas -- possesses its own interests, and the University of Arkansas does not possess administrative control over any Foundation records or the right to direct the Foundation to act or not act in any manner with regard to the issues presented in your emails."
In the UA's post-termination agreement with Long -- in which the university committed to his $4.6 million buyout -- the deposed athletic director was instructed on how he could communicate publicly about the parting.
Long and the UA "agree not to make disparaging remarks regarding each other and to state, if asked, that any differences between them were resolved on an amicable basis," says the agreement, also obtained under open-records laws.
Rushing said the "industry standard" nondisparagement clause was "an accurate statement of the parties' agreement."
"When appropriate, we have utilized that same language in most other releases related to athletics staff members," he said.
The UA's contract with Korn Ferry to replace Long included instruction from the university to the firm to not communicate with university officials in writing and to keep records related to the search away from the campus.
In a subheading titled "Confidentiality & Records," the university directed Korn Ferry to only communicate with the chancellor and his chief of staff unless otherwise notified.
The section, which cites "the necessity of confidentiality and respecting privacy rights of potential candidates," also stipulated that "all communications ... shall be verbal."
The agreement goes on to say that Korn Ferry's notes, work products, internal memos and records "shall not be transferred to the university."
Specified university officials and chancellor advisers could review those records, but only at Korn Ferry's office "or at such other place and at such time or in such manner as might be requested by the University's representatives and agreed upon by" Korn Ferry, the contract says.
Rushing said it would be "completely false" to suggest the section was designed to avoid open-records laws.
"The instructions were to establish the appropriate points of contact for communication between the university and the firm hired to vet the final candidates and to respect the personal privacy rights of the final candidates," he said by email.
Tull, the Arkansas Press Association attorney, was skeptical.
"In my opinion, I know of no other reason to avoid written communication other than to avoid the Freedom of Information Act," he said.
A Section on 12/12/2017
Print Headline: In UA sports firings, hiring, process foggy