The Invisible Harreld Hire Lies

In the previous post we adopted fairness as the sole standard by which we would judge the election of J. Bruce Harreld to be the next president of the University of Iowa. We also noted different dodges that Iowa Board of Regents President Bruce Rastetter, and acting University of Iowa President Jean Robillard, have been using to explain their preferential treatment of Harreld during the search process, and that their arguments always lead away from or obscure the question of fairness.

So. How do you steal an election? Well, if you’re Robillard, and you’re the chair of the search committee, and you’re Rastetter, and you’re also on the search committee, the first thing you have to do is corrupt the selection process. If you can’t get your candidate — freelance business consultant Harreld — through to the full Board of Regents, which Governor Terry Branstad has thoughtfully packed with political cronies for just such an occasion, then you can’t elect your stooge.

Though I know nothing about hiring anybody for anything, I’m reasonably sure that institutions like the Board of Regents and the University of Iowa hire people all the time, and as a result have mature guidelines and procedures for doing so. And in among all those mature policies I’m guessing there are a lot of do’s and don’t’s, and people on staff who are well-versed in those do’s and don’t’s, including some people called lawyers whose job it is to make sure the do’s happen and the don’t’s don’t. Because the last thing anyone wants in the middle of making a hire is for the appearance of impropriety, let alone actionable impropriety, to rear its ugly head.

Because I’m naive to such things, however, and cannot draw on real-life experience in this post, we’re going to do the next best thing, or the best thing if you prefer fiction to nonfiction. That’s right — we’re going to join an imaginary search committee fraught with the same aggressive recruiting and meticulous due diligence that tormented Robillard and Rastetter during their epic struggle to catch, land, and mount J. Bruce Harreld over the black-and-gold Iowa mantel.

So let’s pretend we’re members of a twenty-one person search committee in a parallel universe, which also happens to be looking for a new university president. I’ll play the part of Bruno Ratsnest, the head of the Board of Regency, which will elect the new president from four finalists chosen by the committee. You’ll be Jacque Bobblehead, the acting president of the university, and because of your loyalty to the regency you get the chair.

Although there are nineteen other members on the committee, because we represent and control both the regency and the university, and have access to crack staffers and legal teams at each institution, we decide to take the lead and do everything we can to conduct a fair search that meets not only every legal requirement, but every ethical test that might leave us vulnerable to the dreaded appearance of impropriety. We’ll not only do that from our point of view as aggressive recruiters, but from the perspective of meticulous candidates doing due diligence. Whatever happens, the one thing we will be sure of is that we are prepared for any eventuality.

The President’s Bedroom
Or so we think. In your role as an aggressive recruiter you learn that a tantalizing prospect with a bad back is worried about being able to sleep through the night after taking the job. Being the proactive sort, you decide to offer the undecided candidate the opportunity to spend a night in the presidential bedroom, just to ease their concerns. Before you actually make the offer, however, you run it by staff to make sure it’s okay, and as it turns out there are a bunch of procedural hurdles to consider. Still, with staff support you manage to you fill out the necessary forms and everything looks good, right up until you tell me your plan.

While I understand the motive for your offer, it seems to me that if we offer a night in the presidential bedroom to one prospect, then we have to make the same offer to everyone. You know, to be fair. Because that throws a wrench into your plans we kick some alternative ideas around, including limiting the offer to prospects with bad backs under some sort of ADA provision, but even then we would have to get notarized documents or some other proof of eligibility, at which point the whole idea seems like more work than it’s worth. While we could still make the offer to the candidate you originally targeted, and the candidate is one that I like too, doing so would clearly be seen as preferential treatment. Which we confirm by talking the idea over with staff, who explain in no uncertain terms that giving any candidate preferential treatment for any reason — even if our hearts are in the right place — will undercut the legitimacy of the search, and thus the legitimacy of the election.

If we do make the same offer to everyone, not only will we have to make arrangements for the initial candidate if they accept, we’ll have to figure out how many others might accept, how to schedule all of those additional overnights, assuming that’s even possible, and how to deal fairly with any ancillary wants or needs that might come up as a result. Too, the moment we decide that we are going to make the presidential bedroom available for one night per candidate, we will have to send a blast email to any candidates already considering the position. Then we will have to send another email to the members of the search committee and any other recruiters, letting them know that an overnight in the presidential residence is available as a potential inducement.

At most we might limit the offer to candidates who are declared as opposed to simply kicking the tires, but because the candidate you originally wanted to approach is not yet decided that would again defeat the original intent. Given the administrative nightmare, the logistical nightmare, and my announcement that I’m going to unceremoniously dump all of those obligations on you because it was your bright idea, you decide not to make the offer. While obviously frustrating, particularly given all the work you put in, I remind you that it’s for the best, because in making such decisions we are protecting the integrity of the search process.

At which point, a few days later, the exact same candidate contacts me and asks if they can spend one night in the presidential residence, because they have a bad back and don’t sleep very well. Suddenly, instead of the question arising from aggressive recruiting it’s coming at us in the form of due diligence, but does that change anything? Everything we already discussed is back on the table, but only because the question was initiated by someone outside the search process. Even if we’re high on that particular candidate — and we are — we’re still constrained by the same administrative and logistical problems, as well as our obligation to fairness, so what option do we have but to say no? You now, assuming we’re not just some rogue criminal enterprise pretending to be a fine, upstanding search committee.

Administering Fairness
During the search process there is nothing wrong with recruiters coming up with ideas that might appeal to prospects, and nothing wrong with candidates asking recruiters for things that might help them decide whether the job is a good fit. It should be equally clear that no search process could ever anticipate all of the ideas and requests that might come up during any search, meaning administrative measures would have to be in place to deal fairly with such issues on the fly.

Who could have predicted interest in spending the night in the president’s bedroom? Nobody, that’s who. But once the issue came up, there had to be an orderly and fair way of dealing with it, and issues like it, which is why such procedures are probably codified at institutions that do a lot of hiring. Like, say, the Board of Regents and the University of Iowa. You know, like how the same issues are covered by laws in the context of routine governmental elections and gift-giving to political officials, so nobody gets confused and thinks anybody is trying to buy an elected-somebody off.

Not only must there be a process for making such decisions, however, but whenever it was decided that some new opportunity was available there would have to be a procedure for notifying current candidates about that option in a timely manner, as well as notifying recruiters and members of the search committee that they could make that offer to new recruits. And I don’t see how you could get around doing those two things — again, assuming you weren’t just a crook and actually intended to conduct a fair search, whether that search was open, closed, or in-between.

Once you had all that in place, as the search went along there would be a steady stream of rendered decisions about possible opportunities, whether initiated by recruiters or by candidates doing due diligence. At any time all candidates would know what they could avail themselves of, and all recruiters would know what they could offer to new candidates and candidates already in the pipeline. Not only would that ensure a level playing field, the entire process would bring opportunities to the fore that some candidates and recruiters would never have considered. Behind the scenes there would also be a list of opportunities that were considered and rejected for whatever reason, along with a steady stream of dispatches communicating those determinations to recruiters and members of the search committee, so everyone knew what could and couldn’t be put on the table.

Administering Deceit
Now contrast all that with the Harreld search, and Robillard’s contorted defense from a week ago Thursday, in response to questions about the fairness of the hiring process that both he and Rastetter administered:

“To recruit candidates, you have to talk with them,” he said. “Some of these people had never come to Iowa City. Are you to say you cannot come to Iowa City?”

One of the many duplicitous implications of Robillard’s absurd question is that he, as head of the search committee and acting president of the university, was powerless in the face of an anal candidate determined to do exhaustive due diligence. It’s as if Robillard wants to be seen as a victim, or believes that his demonstrably preferential treatment of Harreld was compelled by the sworn oath that he and Rastetter pledged (aggressive recruitment), combined with Harreld’s meticulous fact-finding (due diligence) and persistent uncertainty (mindset).

Not surprisingly, Rastetter does the same thing, often in the same context — implying that his own preferential treatment of Harreld was compelled by incessant demands regarding due diligence. Time and again both Rastetter and Robillard shape-shift between being powerful, imperious leaders at the regents and university, respectively, and being hapless drones on the search committee, constantly tormented and vexed by the ever-indecisive, ever-demanding Harreld.

Harreld also visited the UI campus on July 8 to speak at UI Hospitals and Clinics as a guest speaker.

“This was part of the recruiting process,” Rastetter wrote. “Each of those who had lunch with Mr. Harreld that day, as well as others on the Search Committee, recruited candidates to apply as we were encouraged to do.”

Encouraged by whom? The president of the board of regents? Wait — that’s you! By the chair of the search committee? Wait — that’s Robillard!

And what’s with Rastetter’s implication that recruitment was an individual sport? Not only do we have the president of the board of regents taking marching orders from some nebulous, nameless governing entity, but each search committee member seems to be its own subcommittee, recruiting aggressively and providing due diligence on an independent basis. Isn’t the whole point of a search committee, and the staff assigned to that committee, to make sure that the search is a collective process governed by rules and procedures? You know, to ensure fairness?

Jean Robillard is the acting president of the University of Iowa, and was the head of the search committee that sent Harreld and three other candidates to the regents for the final vote. Bruce Rastetter is the president of the board of regents, and as such he not only initiated the search process, he wielded as much or more power over the conduct of the search as anyone on the committee. And yet these two heroes genuinely want people to believe that their documented preferential treatment of J. Bruce Harreld was simply the result of doing their duty. (Or maybe that’s doody.)

Well, this may come as a shock to both Rastetter and Robillard, but no matter how they felt at the time, or how they might want to characterize their membership on the search committee now, there was never a moment when either man was freed from his professional obligation to make sure that the search was fair. Again, these two men come armed with administrative staff, lawyers and contacts that can answer any question in an instant, yet they want us to believe that their documented preferential treatment of Harreld means nothing. At most Rastetter might be able to blame Robillard for such failings on procedural grounds, but Rastetter was still obligated to make sure that the search was fair, and to report anything that smacked of preferential treatment, which he clearly did not do.

During the entire search process there was never a moment when Bruce Rastetter was not the president of the Board of Regents, and there was never a moment when Jean Robillard was not the acting president of the university and the chair of the search committee. As such they were both obligated to administer a fair search, yet failed to do so. And that’s not just me talking — that’s the Des Moines Register:

But the regents’ behind-the-scenes actions undercut the public process, most notably with the private meetings with Harreld.

The five board members’ ex parte meetings with one candidate also were within the board’s prerogative, but they were unfair to the other finalists, who were led to believe they would be treated equally. They were also a slap in the face to the members of the faculty and staff, who were led to believe their opinions mattered.

And, while there may have been nothing illegal about the private meetings, since none involved a quorum of the nine-member board, they were improper. All finalists should have been treated the same: If one finalist gets to meet one on one with individual members of the board, all should have had the same opportunity.

One month after the election, with a month to go before Harreld takes office, the only claim that Rastetter and Robillard can make about the fairness of the search process which they administered is that they did nothing illegal. What lower bar is there for success, even as their protestations may yet be proven false? All that’s missing is proof that what they did was a crime, but of course that’s exactly why both men positioned themselves to administer the search process in the first place.

By putting themselves on the committee, and giving Robillard the chair, they were able to tell the kind of lies that would get them what they wanted. Not just dodges, which can be unpacked if you have the patience, but invisible lies that leave no trace. In fact, the lies that Rastetter and Robillard repeatedly told while subverting the search process are a special kind of lie — a double-secret lie. Exactly the kind of lie you tend to learn when you’re a long-time administrator or bureaucrat.

Lies, Damn Lies, and Bureaucrats
Think about what it means to lie. When you think of someone lying, and you think about catching them in a lie, how do you formulate that sequence of events?

Chances are you think of lying this way:

• Somebody does something they’re not supposed to.
• You ask them if they did it.
• They tell you they didn’t do it.

You and another person make an agreement, the other person breaks the agreement, you accuse them of breaking the agreement, they swear they didn’t do anything. Pretty standard stuff. It’s an ugly moment between you, but unless you’ve got proof you’ve got nothing, at which point you can get on with the cold war over who now commands the moral high ground. You, who continue to feel betrayed and mistrustful, or the person who lied and got away with it, who will now also claim to have been unjustly accused. Good times.

What you may not know is that such garden variety lies are called lies of commission. In a lie of commission you accuse someone of something and they lie in response. There is also another kind of lie, however, and that’s a lie of omission. In a lie of omission what’s missing is not the lie, but the accusation:

• Somebody does something they’re not supposed to.
• Because you’re the trusting sort you never accuse them.
• They never mention what they did.

Even if you believe that what other people don’t know won’t hurt them, with a lie of omission you’re still acknowledging that you did something wrong. In fact, you prove that simply by keeping your mouth shut instead of talking about what you did. Even if nobody ever knows what you did, if it was something you weren’t supposed to do then concealing that information is a lie of omission. You may avoid repercussions for decades, but if your lie of omission is uncovered you may still be subject to penalties ranging from seething disdain to incarceration.

So, we’ve got lies of commission where someone is accused, and lies of omission where no accusation is made, but that’s still only half the picture because there are two parts to any lie. There’s the act itself — the thing you did that you weren’t supposed to do — then there’s whether or not an accusation is made. And that’s where things get interesting because just as you can have lies of commission and omission, you can have crimes of commission and omission, which means we’re not just looking at two kinds of lies, we’re looking at four.

Here are the two kinds of lies we just discussed, categorized:

Crime of Commission / Lie of Commission

• Somebody does something they’re not supposed to.
• You ask them if they did it.
• They tell you they didn’t do it.

Crime of Commission / Lie of Omission

• Somebody does something they’re not supposed to.
• Because you’re the trusting sort you never accuse them.
• They never mention what they did.

Now here are the other two lies, which arise from crimes of omission:

Crime of Omission / Lie of Commission

• Somebody doesn’t do something they’re supposed to do.
• You accuse them of not doing what they were supposed to do.
• They say they did what they were supposed to do.

Crime of Omission / Lie of Omission

• Somebody doesn’t do something they’re supposed to do.
• Because you’re the trusting sort you never accuse them.
• They never mention what they didn’t do.

Do you see what Robillard and Rastetter did, and why it’s been so hard to find proof of fraud? They didn’t commit crimes of commission, they committed crimes of omission. What they did, is what they didn’t do.

Commission by Omission
At some point in your life you’ll become convinced that someone is getting away with something, and that you’re sure you know who that someone is, but you won’t be able to prove your suspicions. It’s maddening, but absent a smoking gun — video evidence, a fingerprint, DNA — you’ve got no proof. Even if you put press on and pepper them with questions they’ll have an answer for everything. Maybe not a great answer, or even a good answer, but an answer.

In the case of the Harreld hire, that all goes a little something like this….

“What did we do? Didn’t you want us to be aggressive in our search? To find the best and brightest and do what we could to interest them in Iowa? Why wouldn’t you want that? And when we did find someone who was interested, what were we supposed to tell them? That they couldn’t come to Iowa and meet the people they would be working for and with? What sense does that make? We did our jobs! We bled black and gold and you’re accusing us of impropriety — or worse, outright criminal fraud! So tell us — what did we do wrong?! WHAT — DID — WE — DO?!”

And you’ve got nothing. And you know you’ve got nothing. And they know you’ve got nothing or they wouldn’t be acting like indignant little snots, which only makes you ten times angrier, which is of course why they’re doing it. Until you suddenly realize that the problem is not that you don’t have proof, it’s that you’ve got nothing when you should have something. And that’s when the lightbulb finally goes on.

In response to the crimes of commission that have been exposed in the Harreld hire, meaning principally the special treatment that Harreld got from Governor Branstad, Regents President Rastetter and acting Iowa President Robillard, those individuals have responded with lies of commission, and not too convincingly. Governor Branstad lied when he said he had nothing to do with Harreld’s election, because Harreld was the only candidate he called and spoke with. Robillard and Rastetter lied when they said they didn’t give Harreld special treatment, even though he clearly got special treatment on July 8th and July 30th.

Rastetter said Harreld requested and received meetings with four other regents and Iowa State University President Steven Leath on the eve of the application deadline July 31. And Robillard on Thursday echoed Rastetter’s sentiment that Harreld was doing his due diligence in researching the opportunity, and the meetings did not break any rules.

Once again, note that Robillard is employing the Openness Dodge, which leads away from questions of fairness. Still, it’s good to get the good doctor on the record about the importance of rules, and in particular the fact that there were rules in place for administering the search process. Because it’s those rules that are at the heart of the real fraud that Robillard and Rastetter perpetrated.

Now consider the following crime and lie:

• During a fair job search you give one candidate preferential treatment.
• You are accused of giving a candidate preferential treatment.
• You deny giving a candidate preferential treatment.

Again, that’s a crime of commission (the preferential treatment) and a lie of commission. You do something you’re not supposed to do, you’re accused of doing something you’re not supposed to do, you lie and say you didn’t do it.

That’s where we’re at with the Harreld hire. Rastetter, Robillard and Branstad gave Harreld preferential treatment, but it’s assumed that they did so in the context of an otherwise fair search. They’ve been accused of preferential treatment, and they’ve dodged those accusations every way they can, but it’s clear that they did give Harreld preferential treatment. So they’re proven liars, but only with regard to those crimes of commission.

Now consider this example:

• During a subverted job search you give one candidate preferential treatment.
• You are accused of giving a candidate preferential treatment.
• You deny giving a candidate preferential treatment.

Do you see the problem? In the first example there’s only one crime — the crime of preferential treatment. In the second example there are two crimes — the crime of preferential treatment and the crime of unfair administration — but because no accusation is made about the latter crime the perpetrators don’t have to utter a lie of commission in response. Instead, they can simply lie by omission about the unfair search process, which is what Rastetter and Robillard have been doing all this time.

Complicating matters significantly, if the subversion of the search is accomplished through crimes of omission – by not doing something you’re supposed to do — then there are no acts, no deeds, no meetings, no phone calls, no emails, no crimes of commission to uncover. No matter how hard you look you will never find a smoking gun, because in a crime of omission the smoking gun is a gun that was never fired.

With a crime of omission, until you know what wasn’t done you can’t ask the right questions. Once you do know that a crime of omission was committed, however, you can ask the right questions, effectively converting what were lies of omission into lies of commission, which may then prove false. (Or, perhaps one of the perpetrators will crack under the strain, or decide to cut a deal to avoid jail time.)

With regard to the Harreld hire, the press has been all over the crime of preferential treatment. They’ve reported the favoritism shown to Harreld and they’ve asked the right questions. Although Robillard and Rastetter have tried to dodge those accusations mightily, those accusations have stuck.

The second crime, however — the crime of systematic administrative subversion — has been overlooked. It’s not just that Rastetter and Robillard threw Harreld a few improper bones, it’s that they did so in the context of a search process that actively starved other candidates and recruiters. As members of the search committee, let alone as the president of the Board of Regents and the acting president of the University of Iowa, Rastetter and Robillard had both the obligation and authority to ensure that the playing field was level for all candidates. Instead, they sabotaged the selection process through systematic bureaucratic crimes of omission, which are not only exceedingly difficult to detect, but do not rise to the level of illegality.

So. How do you steal an election, without breaking a law?

— Mark Barrett