The University’s Advisory Board on Intercollegiate Athletics, the only body charged with providing faculty, student and alumni input to the Athletic Department, is restricted by a wide-ranging confidentiality and fiduciary agreement with the department, causing some faculty members to call into question the board’s independence and influence.

The ABIA is established by the bylaws of the University’s Board of Regents and is designed to serve as an adviser to the athletic director. It is also instructed to “make, adopt, and enforce the necessary rules and regulations” concerning student-athlete eligibility and “intercollegiate relations.”

“The existing agreement starts from the premise that all information acquired in ABIA is confidential unless explicitly released,” wrote Scott Masten, chair of the Senate Advisory Committee on University Affairs and a professor of business economics and public policy, in an e-mail. The agreement has been in place since at least 2010.

The confidentiality agreement, which was released for the first time at Monday’s meeting of the University Senate, refers to ABIA’s “fiduciary duties of loyalty and care.”

The confidentiality agreement, which was released for the first time at Monday’s meeting of the University Senate, refers to ABIA’s “fiduciary duties of loyalty and care.”

“Members of the ABIA sign confidentiality and fiduciary agreements because there often is confidential information shared,” Associate Athletic Director David Ablauf wrote in an email. “It’s important that ABIA members understand how seriously the university takes the protection of that information.”

By making all discussion confidential by default, the agreement stops members of the committee from discussing concerns — large or small — with anyone other than University President Mark Schlissel. The current policy requires direct approval of the athletic director, who is chair of the ABIA by default but lacks a vote, to publicly discuss issues brought up during meetings.

Ablauf wrote that members could always bring up issues to fellow ABIA members, appropriate offices at the University or use the University’s compliance hotline. The agreement itself does not provide for outside contacts other than the University president. The agreement itself does not provide for outside contacts other than the University president.

Masten and other members of SACUA are troubled with the current agreement’s wide-ranging language and said it prevents important or relevant information from reaching the public and faculty. They also pointed to recent scandals at the University of North Carolina at Chapel Hill and Pennsylvania State University, where many have blamed lax athletics oversight for allowing transgressions.

He added that he initially saw the agreement earlier this year when he became part of ABIA as one of his duties as chair of SACUA. The chair of SACUA serves on ABIA, per the regents’ bylaws. He has not signed the agreement but has been able to attend ABIA meetings, while negotiations on a new agreement are continuing.

In similar committees, such as the Board of Regents or SACUA, information discussed is deemed public unless specifically qualified as private through a vote. The confidentiality agreement for ABIA members takes the opposite approach.

University spokesman Rick Fitzgerald wrote in an e-mail that other other groups such as executive search committees also use confidentiality agreements. Members of the Chief Financial Officer search committee were asked to sign a copy of the group’s charge which asks members to “maintain confidentiality as directed.”

Masten and members of SACUA raised concerns with the University’s Office of the General Counsel, asking if the agreement violated ABIA’s mandate outlined in the regents’ bylaws. The bylaws state, “At any time, the Advisory Board may consult with the University Senate.”

“Both I and SACUA objected to the agreement as being excessively broad and restrictive, as well as to the fiduciary language” Masten wrote. “We also felt that it conflicted with the spirit of the regents’ Bylaws, which provide for consultation between ABIA and SACUA and the Senate Assembly.”

A legal memo from the General Counsel’s office, according to Masten, argued that since ABIA is not actually required to consult with the University Senate, the agreement does not violate the exact wording of the regents’ mandate. The University declined to provide the memo.

There has been pushback within some parts of the University for changing the agreement.

“Initially, the General Counsel told (Masten) that they would revise the agreement, but within hours informed (Masten) that there was ‘resistance’ to changing the agreement,” state SACUA’s minutes for Sept. 29, 2014.

Masten and other members of SACUA have been working for several weeks on negotiating, writing and editing a new agreement, which was approved by SACUA.

This new agreement stands in contrast to the current agreement. The proposed confidentiality agreement states most things are non-confidential by default, unless ABIA votes for an executive session. All “fiduciary” language was removed.

The proposed agreement was recently sent to the General Counsel’s office and SACUA is awaiting a response.

This story was updated to include additional details from the confidentiality agreement, which was made public at Monday’s SACUA meeting.

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