FAU Followed UF Lead

in Non-Disclosures

• By Ryan Dailey, News Service Florida
• August 28, 2023

TALLAHASSEE — Non-disclosure agreements signed by members of Florida Atlantic University’s Presidential Search Committee mirrored similar documents used by the University of Florida during its search for a new leader last year, a review of the agreements showed.

The state university system’s Board of Governors in November approved a rule that requires members of presidential search committees to sign non-disclosure agreements, or NDAs.

The regulation stemmed from a 2022 law that provides public-records exemptions and public-meetings exemptions in higher-education presidential searches. The law, in part, shields information about applicants until groups of finalists for the presidential posts are determined at the tail-end of searches.

David Kian, who serves as FAU’s vice president and general counsel, said in an email to state higher-education officials last week that the non-disclosure agreements used in the school’s search complied with the Board of Governors’ rule. Kian also noted that the FAU agreements were based on agreements used by UF.

“It struck me as an excellent statement of the principles that would govern a successful search, and so we borrowed from it liberally in developing FAU’s document. I shared our final document with the BOG’s (Board of Governors’) former General Counsel before distributing, and she replied that it was good,” Kian wrote.

The non-disclosure agreements signed by all members of FAU’s committee were part of a search for a new president that was halted last month at the direction of state university system Chancellor Ray Rodrigues. The chancellor alleged various “anomalies” in the search process and launched a probe.

FAU’s non-disclosure agreement drew heavily from the one used by UF in a search that culminated in the selection last year of former U.S. Sen. Ben Sasse, R-Neb.

The documents have several identical provisions.

“I acknowledge that only the Chair is authorized to speak to the media on behalf of the institution,” said one provision found in both schools’ agreements.

Another provision found in both universities’ agreements dealt with what Kian called “aspirational guiding principles.”

“I will strive for impartial treatment of issues and dispassionate handling of controversial subjects. I understand that prospects and candidates who have held executive jobs and made difficult decisions have not necessarily been in positions to win popularity contests,” both documents said.

Such provisions in the FAU agreement drew criticism from open-government expert Barbara Petersen, executive director of the Florida Center for Government Accountability. In a recent interview with The News Service of Florida, Petersen said such principles “go far beyond the needed message” of a non-disclosure agreement and described FAU's document as "overkill."

But Kian said that Petersen didn’t “understand the intent of the document in which the NDA (non-disclosure agreement) was contained.”

“The document … does indeed contain provisions that go beyond the required NDA because the document’s purpose is broader than just the NDA. As stated in its title, the document’s purpose is to identify the guiding principles that governed the search and that all search committee members were requested to observe,” Kian wrote on Wednesday.

Kian’s message came in response to an email from Alan Levine, a member of the Board of Governors who also is a member of FAU’s search committee. Levine’s email said that the FAU agreement “goes well beyond the law and the BOG regulation,” which he said was narrowly tailored to comply with the 2022 law.

“All the BOG regulation does is mandates that universities ensure the search committee members comply with the sunshine law exemption --- and nothing more,” Levine wrote.

Levine’s email pointed to a discussion he initiated at a meeting of the Board of Governor’s Nomination and Governance Committee in June.

At the time, Levine encouraged the board to adopt a rule aimed at ensuring presidential search committee members do not violate the 2022 law. Under the law, the names of applicants who are not on the final list of candidates must remain cloaked.

A regulation requiring non-disclosure agreements should be “consistent, documented” and “have teeth, to make sure that we don’t do something that’s harmful to an applicant, or an institution,” Levine said at the committee's meeting on June 30, 2022.

“Obviously, the Legislature’s findings are that this could be very damaging if information about applicants is leaked or released. So I’d like to propose that some language be added to the rule before adoption that calls for non-disclosure agreements, to the degree commercially appropriate, with provisions for damages in the event of a violation of nondisclosure,” he added.

The regulation approved by the board in November said that failure to “abide by the requirements of the non-disclosure agreement may subject an individual to civil or criminal penalties under Florida’s Sunshine Laws.”

In halting FAU’s search, Rodrigues alleged that the committee participated in a “straw poll” that the chancellor said may have run afoul of the 2022 presidential search law.

The Board of Governors is slated to address the issue this week. During a meeting scheduled for Tuesday, the board could ask Attorney General Ashley Moody’s office for a legal opinion on whether search committees can engage in surveys, “conducted off the record, outside of a meeting,” aimed at ranking preferred candidates.

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