Hello fellow Coogs,
The news of The Rice administration’s unethical attempted sale of KTRU has largely dominated discussion here in Houston. For myself, a University of Houston graduate, this leaves me with a particular sense of responsibility as it is my University who is the intended recipient of KTRU’s license. The University of Houston, as many of you know, owns the license on behalf of KUHF who broadcasts a mix of classical music and NPR programming. KUHF, though is not a college station in the truest sense as many have asserted because it is not run by the students, operated by the university, nor is it funded by the university. This is not to say anything bad about KUHF. It is an important part of the community and serves a great need but to expand its broadcasting by silencing KTRU is unconscionable and the fact that my university is allowing this sale to go through under the current circumstances leaves me feeling culpable.
An article in Texas Watchdog makes some excellent points about the dubious nature of the deal.
1) The Rice Administration, contrary to normal operating procedure, purposely tried to keep things as secret as possible.
2) The Rice Administration purposefully downplayed KTRU’s value in the Rice and Houston community to the University of Houston.
3) The University of Houston Regents agenda was too vague. Nowhere is KTRU mentioned in the listing which states, “Approval is requested to delegate authority to the Chancellor to negotiate and execute an asset purchase agreement and a management agreement, up to $10 million, related to the purchase of a radio station for use by KUHF – University of Houston.”
This third point is where there is hope. First contrary to how it has been categorized – this is not a done deal. Secondly, because the meeting notes left out the critical detail that the generic “asset purchase” was KTRU, this appears to be a violation of the Texas Open Meetings Act. Now, I am not suggesting that The UH Board of Regents did this to be secretive – it is quite likely that, given the fact that Rice University “has pushed on as if KTRU is on its last legs” they may have seen this as immaterial – but oversight or not, this is why the law exists: to assure that controversial issues are not handled under the table.
A violation of this act could be something handled by the courts which could void the results of the vote. But there is a simpler way to handle this which I’m sure the Board of Regents would appreciate and that is simply for a call to have this original vote voided and to take this issue up again at its next meeting. The University of Houston has always thrived by being open and transparent and this is not time to change that course.
Therefore, I am asking my fellow University of Houston Alumni and Students to send yr respectful objection to our Board and President requesting the president not approve the sale at this time and that the board take up this item with a proper Agenda Item Listing that would inform the public as to the content. Additionally, as that you implore the board to not approve the sale without the Rice University adopting the open and transparent standards that we enjoy and take pride in at our university.
Details of who and how to contact the board and President Khator can be found at SaveKTRU.org . You can also join UH for KTRU on Facebook.
Thank You
Ramon Medina
Class of 2000
The probable defense to any open meetings allegation with respect to KTRU is that describing either the issue or authority delegated to Khatu too narrowly, so as to limit the possible acquisition to ONLY KTRU, could have meant Khatu was literally locked into negotiating only with KTRU. What if another small operator heard of the pending negotiations and wanted to offer their license / assets for less? If the agenda item and resulting vote of authority were limited only to KTRU, Khatu wouldn’t be able to consider the other offer. Now, not only would Khatu be limited to KTRU, she wouldn’t have any leverage to force further price concessions from Rice, which might be appropriate if there were two possible sellers instead of one.
It’s possible that the actual authority delegated to Khatu IS limited to KTRU, but I’ve not seen an article describe whether that is the case. I’m just saying there are good reasons in addition to secrecy for not limiting the agenda item in that manner.
Another defense is that the agenda item was specific enough. UH notifed its constituency it wants to purchase a radio station with funds not more than $10 million. That’s pretty damn specific. Especially when you consider the attorney general’s comments in context. The attorney general was attacking ultra generic items such as:
The actual statute doesn’t even require the specificity the Attorney General seems to demand, only stating that “(c) The certified agenda must include:
(1) a statement of the subject matter of each deliberation;”. I imagine case law has read into this some type of specificity requirement, but again it seems likely the UH board met this minimum requirement. At least as the AG would describe it.
I think there’s very little chance this gets invalidated under the Open Meetings Act. But there’s always a chance negotiations don’t work out. Or the FCC doesn’t approve the deal.
Come on, you think the board would’ve voted to give him authority to spend $9.5 mil on any old radio station no matter which one or how powerful? The fact that it is KTRU & its 50,000 watt transmitter are integral to their decision, and certainly of extreme importance to the public at large, who the Open Meetings Act is designed to protect.
They may claim that there could be another station to bargain for, but these aren’t widgets with unlimited supplies. There aren’t other frequencies for sale, which is why this one is so valuable. Leaving the name of the actual station off was clearly done for the purposes of obfuscation.
Nobody thinks the sale will be invalidated by the Open Meetings Act, only that they would have to re-vote, this time without hiding details of the deal from interested parties.
And there’s no reason to think that the FCC will stand in the way of the sale.
Although it would be unusual for the FCC to stop it, this is an unusual case and it’s entirely possible that they would.
Unfortunately, it’s not that unusual. It’s an educational institution selling to another educational institution, and it’s going from a private institution to a public one. The FCC has declined to halt transfer of licenses in far more egregious cases in the past.
Okay, I’m going to get totally nit-picky here for the purposes of providing information for anyone who wants to write a letter to UH.
I don’t practice organizational law, so my opinion shouldn’t be construed as legal advice, but I do sit on the board of two public institutions that are subject to the Texas Open Meetings Act (TOMA). To the best of my knowledge, TOMA is structured and will always be construed to protect the public institution. In limited cases, there are exceptions made to the duty of disclosure when disclosure would pose harm to the public institution. Here, TOMA would not be construed to protect the private institution (Rice) from getting the best price for their widget (KTRU).
To prevail on a TOMA complaint, I believe one would have to show that the failure to disclose either (1) harms the public institution or (2) conceals an action taken against the public institution’s publicly filed mission statement as established by its governing board.
Ground (1) would not prevail because disclosure might have only driven up the purchase price — unless one can show that the public outcry that might have ensued would make the station substantially less monetarily valuable. But when I think about it now, this damage seems too speculative and also somewhat unlikely.
In ground (2), however, there may be a possible angle for attack. UH’s stated mission says the school:
…establishes and nurtures relationships with community organizations, government agencies, public schools and the private sector to enhance the educational, economic and cultural vitality of the city of Houston and the state of Texas.
Essentially, you have to ask, “how does the failure to disclose operate to conceal an action contrary to the stated mission of the public institution (UH) and what damage does the action inflict?” Not, “how would disclosure have prevented harm to Rice or the public at large?”
If a letter campaign doesn’t work to convince UH to voluntarily re-vote for PR reasons (to mitigate the perception that UH acted against its foundational mission or purpose), the next step would be to file a complaint to the Texas Attorney General’s Office or bring suit.
Sorry, I was imprecise. I meant the vote would be invalidated or better “voided”. Since that was what Ramon was talking about. The sale hasn’t happened yet, right?
Right, the sale has not happened yet – the board simply gave the go-ahead to President to negotiate and excecute the deal.
No, I don’t “think” that. But I also don’t ignore sound legal and business arguments. And there’s significant wisdom in writing a broader agenda item beyond simple secrecy. I am not suggesting secrecy / discretion wasn’t a motive. In fact, I’d be surprised if Rice didn’t have some input regarding the wording.
“The Texas Supreme Court noted that in Cox Enterprises, Inc. v. Board of Trustees151 “we finally held a notice inadequate.” 152 In the Cox Enterprises case, the Court held insufficient the notice of a school board’s executive session that listed only general topics such as “litigation” and “personnel.”153 One of the items considered at the closed session was the appointment of a new school superintendent. The court noted that the selection of a new superintendent was not in the same category as ordinary personnel matters, because it is a matter of special interest to the public; thus, the use of the term “personnel” was not sufficient to apprise the general public of the board’s proposed selection of the new superintendent.”
I think it could be argued that the purchase of KTRU’s license “is a matter of special interest to the public” as well. I think it’s reasonable to say that the listing of a generic “Asset” in the UH agenda would seem similar to the generic “personnel” in this case becasue of the public interest. So I think it is open for debate which is why I use the qualifier “appears to be.”
But you are thinking so much like a lawyer that I think you are missing the forest for the trees. My point is that there is a simpler (and I beleive better way) to handle this which is to beseech the Board to reconsider this agenda item under conditions that are more open to public comment. I think the circumstances are such that, at the very least, they give the appearance of obfuscation so appealing to the better nature of the board members and the president of a public institution like the University of Houston is much better for all parties than the courts.
No, I’m not missing anything. I think your point is stated pretty well. I’m just suggesting that the TOMA route is unlikely to yield any fruit. I keep seeing people refer to it a significant stumbling block. I don’t think it is. I do agree that asking for a re-vote / reconsideration is a good idea in light of the significant opposition the sale has generated.
Sorry I was so late in responding to the comments here. I thought I would get emails, but I forgot to check the box.
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