Lawsuit: In cutting four sports, EMU violated Open Meetings Act

Tony Paul
The Detroit News

A husband and wife are suing Eastern Michigan's president, athletic director and Board of Regents, claiming their alma mater violated Michigan's Open Meetings Act when it announced in March that it was eliminating four varsity sports.

Lawyers for Douglas and Mary Willer, of Hillsdale County, filed the complaint in Washington County Circuit Court on May 10, seeking to reinstate the programs  men's wrestling and swimming and diving, and women's softball and tennis.

The four sports were cut, effective this spring, in a move Eastern Michigan officials say will save the financially stressed university $2.4 million a year.

Eastern Michigan president James Smith is listed among the defendants in a lawsuit filed against the university over the recent elimination of four sports program.

The university responded publicly to the lawsuit this week, calling it "without merit in all regards" and saying Eastern Michigan will "vigorously defend" itself. A university spokesman said the Board of Regents never voted on the athletic cuts, nor was it responsible for voting on them.

"The Regents are neither required nor expected to make administrative decisions such as this," university spokesman Geoff Larcom told The News. "To the contrary, Board policies clearly indicate that such decisions are a university management function.

"This is not unique to Eastern. Other universities have similar policies."

The decision to eliminate the four sports ultimately fell to university president James M. Smith and athletic director Scott Wetherbee.

Where things get murky, though, is the level of influence of the Board of Regents' eight members, each of whom are listed in the recently filed lawsuit. In multiple news interviews, including an in-depth conversation with The News, Wetherbee acknowledged lengthy discussions with the Board of Regents before a final decision was made regarding the athletic department's budget cuts.

More:EMU announces the elimination of four sports

Wetherbee has said he was told in late February the severity of the cuts expected from his department, and the Board of Regents never met, officially, between late February and when the cuts were announced March 20. The first Board of Regents meeting this year was Feb. 9, the second April 20.

That would suggest, then, that Smith, Wetherbee and regents met or talked about the elimination of sports outside of a formal meeting setting. What's open for debate is whether the regents, without of official vote in the sports-elimination matter, were under obligation to deliberate in public.

The university says no.

"The facts in this situation are clear," Larcom said. "No violation of the Open Meetings Act occurred at our Board of Regents meeting because the decision to reduce varsity sports is an administrative decision and does not require approval of the Board of Regents.

"As such, the decision was not presented to the Regents for their approval.

Lawyers for the Willers, long-time Eastern Michigan wrestling boosters, see things very differently.

"In fact, on information and belief, defendants conspired to make their decision to eliminate the four sports in secret and without public comment," lawyers for the Willers wrote in the lawsuit.

The lawsuit claims that at the April 20 Board of Regents meeting, attended by more than 200 people, public comment was limited to 30 minutes, and none of the advocates for the four eliminated sports were allowed to speak during public comment, despite making requests.

The lawsuit claims public-comment time was limited to 30 minutes, and that there were only 10 speaking spots allotted  none of which were filled by any of the advocates for the four eliminated sports.

The lawsuit claims that was another violation of the Open Meetings Act, though the public-comment portion of Michigan's Open Meetings Act Handbook is plenty open to interpretation, depending on which section or official opinion you are reading.

Time limits for individual speakers can be imposed when larger-than-normal crowds are in attendance, as was the case during Michigan State's recent Board of Trustees meetings, in the wake of the Larry Nassar scandal. According to an official opinion by then-attorney general Frank J. Kelley in 1978, there are other options available in dealing with unusually large meeting attendance, including designating one person to speak on the behalf of several others wishing to speak on the same topic  "to avoid cumulative comments," according to the most-recent OMA handbook — as well as allowing written statements.

More:Michigan's Opening Meetings Act handbook

The current OMA handbook, signed by attorney general Bill Schuette, states, "A rule limiting the period of public comment may not be applied in a manner that denies a person the right to address the public body, such as by limiting all public comment to a half-hour period."

The lawsuit claims that despite being told prior to the meeting that all public-comment time slots were all filled, opponents of the athletic cuts still attended and requested to speak. The lawsuit claims they were told no, "because of the issue of eliminating athletics was not on the agenda."

Also in the lawsuit, the Willers claim Eastern Michigan is "greatly exaggerating" the savings of cutting the four programs. The university has said it will save $2.4 million a year, though supporters who have been looking to save the programs have been quoted a figure of millions more, with university officials citing long-term sustainability. Meanwhile, for the 2016 fiscal year, the most-recent budget available to The News, the programs' annual expenses totaled $1,206,219, but those figures didn't include scholarship money, Wetherbee said.

Despite significant outcry — plus multiple fundraising efforts, which to date have raised tens of thousands in a bid to save the programs  university officials are adamant that their decision, trimming the department's athletic roster from 21 teams to 17, is final.

The football program, a significant reason the Eastern Michigan athletic department is subsidized by student-tuition dollars to the tune of more than $10 million, wasn't considered for elimination. Wetherbee said the money it would lose by eliminating football or dropping to Division II, particularly from leaving the MAC, would result in a much-bigger detriment to revenues and the budget.

"This is what needed to be done," Wetherbee, hired in June 2017 on a five-year contract that pays him at least $269,000 a year, told The News in March. "We didn't really have any other options."

The lawsuit claims Wetherbee had a clause in his contract that he would be penalized $135,000 should any sports have to be cut during his tenure, but that he was relieved of that stipulation in December 2017. Asked about that clause and alleged relief this week by The News, Eastern Michigan didn't respond.

More:New EMU AD might've passed on job had he known cuts were coming

The announcement of the sports-team cuts hit the affected programs hard, and caught coaches and athletes off-guard. Coaches were told March 19, a day before Wetherbee met with the affected athletes — 83 in all, most of which are underclassmen. The university said it will honor the scholarships of affected athletes through graduation, should they decide to stay at Eastern Michigan.

It marked the first time Eastern Michigan has cut sports offering  since 1988, when men's gymnastics and women's field hockey were eliminated.

Wrestling coach David Bolyard on March 20 called the news "devastating," and then adding insult to injury, eight days later he was named Mid-American Conference coach of the year. Earlier this month, long-time swimming coach Peter Linn was the recipient of the National Collegiate and Scholastic Trophy, the highest honor handed out by the College Swimming and Diving Coaches Association. Linn, who guided the men's program to 24 MAC championships in 30 seasons, is expected to remain head coach of the women's swimming team.

The Willers, who filed the lawsuit, have long ties to Eastern Michigan. Douglas Willer earned bachelor's and master's degrees from the university and is a former Eastern Michigan wrestler. He was a two-time All-American in the 1970s and was Eastern Michigan's first-ever Mid-American Conference champion. His 73 career victories were a program record when he retired, and he was inducted into the Eastern Michigan Athletic Hall of Fame in 2007. Mary Willer also holds bachelor's and master's degrees from Eastern Michigan.

They are being represented by Tracy E. Van Den Bergh of the Ypsilanti-based Roberts and Freatman law firm.

Eastern Michigan hasn't formally responded to the complaint in court. It has until May 31.