John Behling was not commenting.
Reporters were eager to talk with him in February after the controversial faculty tenure policies he shepherded through a months-long drafting process were endorsed by a University of Wisconsin System Board of Regents committee without debate.
But Behling, vice president of the Board of Regents, did not break his stride leaving the meeting room after the vote, calling out to “Jim! Jim Villa!” to handle the assembled reporters looking for a quote.
Tom Stafford, UW System general counsel, ended up taking questions about the power of future boards to change the tenure policies headed toward adoption. Villa, vice president for university relations and longtime friend and ally of Gov. Scott Walker, who appointed Behling to the Board of Regents in 2012, watched Stafford field questions.
As an attorney, Behling regularly commented to the press while working on behalf of frac sand mining companies after bitter debate over siting of mines and processing plants emerged in western Wisconsin after 2010.
Behling’s reticence to publicly discuss tenure helped fuel the criticism that the policy-drafting task force he headed merely went through the motions to a foregone conclusion. Some faculty say his leadership in the issue signals a troubling new chapter for the Board of Regents, which they believe is subservient to the state Legislature.
Behling enunciated his position on tenure at length in an unusual op-ed piece on university policy published in December in the Milwaukee Journal Sentinel and picked up by newspapers across the state.
Headlined “UW tenure reforms provide flexibility, accountability,” the essay argued that while some form of tenure needed to be preserved in UW System policy after it was removed from law in Walker’s 2015-2017 budget, tenure needed to change.
“Tenure may be the standard in higher education, but it is out of step with reality for most workers in other sectors,” wrote Behling, then serving as the chair of the Tenure Policy Task Force. Because most workers can lose their jobs for a wide variety of reasons without recourse, many see tenure as a “job for life,” he wrote.
“Tenure is a critical bedrock of higher education because it ensures faculty have the freedom to express their views and direct their research without being targeted by their university leadership or colleagues,” Behling wrote.
“But we also must have a tenure policy that includes accountability and rewards performance. We need policies that protect faculty from unnecessary pressures but also provide flexibility for our campuses.”
Behling declined or did not respond to Cap Times’ requests for face-to-face interviews in February and March, and for a phone interview in April before providing some written responses last week to several questions presented in writing.
The written record in state documents and news reports, however, provides a glimpse of the man and the methods used to manage the tenure policy issue.
UW officials’ management of the issue so alienated faculty at UW-Madison that they took the extraordinary step of passing a resolution of “no-confidence” in the Board of Regents and President Ray Cross before the Faculty Senate on May 2.
One place to learn about Behling is the brief biography attached to the records of the state Senate panel that approved Walker’s nomination of him to a seven-year term on the Board of Regents in March 2012. It described him as a “results-oriented” attorney with expertise in regulatory, environmental, zoning, permitting and public relations issues.
“John has a proven track record of introducing international and local entrepreneurs to federal, state and local leaders. These introductions allow his clients to gain a foothold and collaborate directly with these leaders,” it said.
“John’s client list reads like a ‘Who’s Who,’” the bio said, listing such companies as EOG Resources, Kraemer Mining and Materials, and Menards. Behling’s work as attorney for a dozen small western Wisconsin municipalities was also noted.
So was Behling’s time spent as an aide to former Republican Gov. Tommy Thompson, as a policy advisor on labor, employment and regulatory issues, before being hired by the office of the Secretary at the Department of Commerce.
The bio also cited Behling’s most direct experience in higher education policy before his appointment to the Board of Regents: a three-year stint as a member of the advisory committee to the paralegal program at Globe University. He resigned the position in April 2012, days before lawsuits filed by two former deans at the for-profit career college opened a fraud scandal now being adjudicated in a Minnesota courtroom.
Behling also was president of the board of the short-lived Wisconsin Institute for Leadership, formed in 2007 by Republican operative Brian Fraley, according to a 2008 IRS filing by the nonprofit organization.
The organization spent $636,000 that year, as it “shaped public debate” on education and other issues and created the Working for Wisconsin awards, according to the filing. By 2014, Wisconsin Manufacturers and Commerce was giving the award to 76 Republican legislators who hewed closely to its conservative agenda.
Behling, a vice president in the Eau Claire law firm of Weld, Riley, Prenn & Ricci, soon would mount an unsuccessful appeal of a 2012 Polk County Circuit Court decision upholding the county’s denial of a permit for a proposed Kraemer frac sand mine when the Eau Claire Leader-Telegram wrote about the newly confirmed UW System regent.
The article doesn’t mention Behling’s involvement in the controversial frac sand mining industry, but it does highlight his roots in rural western Wisconsin as bringing a needed perspective to the Board of Regents.
“I live and work in western Wisconsin, and for many years the board was constituted of people who lived between Madison and Milwaukee,” Behling, then 41, told the newspaper.
Behling, who grew up on a Polk County dairy farm, tapped those rural roots for his career in the public sector. He was appointed coordinator of the state’s Dairy 2020 program, designed to boost profits and production, in 1996. That was the year after he received a bachelor’s degree from UW-River Falls, where he began studies in 1989. Behling also completed a summer program at Georgetown University in 1991.
In the 1990s, Behling worked for Bill McCoshen, director of Thompson’s successful 1994 re-election campaign, while McCoshen was secretary of commerce. Also on board at Commerce was Villa, a former deputy director of Thompson’s Milwaukee office.
Thompson remembered Behling as “very bright; he wanted to be a lawyer. I hired a lot of young people so they could keep up with me. Most of them have done very well.”
Behling left Commerce in 1997 to attend University of Wisconsin Law School, receiving a degree in 2000. He soon was hired by the Eau Claire law firm, now known as Weld Riley.
Behling did not respond directly to a Cap Times inquiry about his six-year journey to a bachelor’s degree and how that might inform his sense of the needs of students in the UW System who increasingly juggle jobs and school and sometimes family responsibilities.
He did say he came to UW-River Falls from a very small town in northwestern Wisconsin, “and that experience really changed my life and opened so many doors for me. My career really began there and I want to make sure every kid from a small town has a chance to have that kind of experience.”
Staying on message
Behling avoided news interviews on the tenure controversy, but reiterated the themes from his op-ed piece — flexibility, accountability — in remarks to the tenure task force and later the Board of Regents. He also warned regents that the system, which took a $250 million hit in state funding in the latest budget round, would not fare better in the next budget cycle if tenure were not reformed.
Strong tenure policy will “allow us to continue to compete in the global education marketplace,” Behling told regents before the committee vote in February. He said the policies would hold campus leaders and faculty accountable and enable the system to operate more efficiently and effectively.
“Without demonstrated accountability, our budget prospects in the future will not improve," he said.
In his emailed response to the Cap Times, Behling said he presented his position in the op-ed piece, published the day before the final meeting of the task force, because he wanted to hear from chancellors, faculty and staff “before sounding off on the issue.
“The op-ed was an opportunity for me to share the research we had done and to update the public in a concise and informed way that reflected what we had learned so far,” Behling wrote.
Emails obtained by the Capital Times through an open records request reveal that staying on message and tamping down opposition on the tenure issue were priorities for top UW system officials.
A copy of the proposed tenure policies, with minor changes recommended by the Board of Regents education committee in February, were sent to regents — and made public — on March 7, just three days before the final vote.
In introductory comments on the policies, Behling again sounded the themes of accountability and flexibility: “These draft policies would hold campus leaders and faculty accountable and empower our campuses to operate more efficiently and effectively.”
Regent Tim Higgins messaged Behling and regent president Regina Millner that day about putting off the entreaties of the UW-Whitewater leader of a system-wide effort to amend tenure policy proposals before the vote.
“I believe that it’s important that all Regents support the task force recommendations as presented,” Higgins wrote.
Millner also wrote of putting off faculty trying to lobby their case and told Behling she thought a chart of the proposed policy amendments would show common points between those offered by administrators and faculty.
“In addition, this will help us better articulate our reason for not making the other amendments,” she wrote.
Behling expressed his displeasure with faculty attempts at the 11th hour to address regents on the tenure policy as they prepared to vote.
“I think this has become a poor idea,” Behling wrote to Millner, Cross, Villa and UW System state lobbyist Jeff Buhrandt. “I have also spoken with a couple of Chancellors that agree with my assessment.”
Behling then offered to “jump on a call” to discuss the issue, a preference for phone communications expressed often in his emails about the tenure issue in the month leading up to the Board of Regents vote.
Behling decided, however, to broadcast an email message of support from State Sen. Sheila Harsdorf, the River Falls Republican who co-sponsored an omnibus motion in 2015 that removed tenure from state law.
“On the heels of a fair amount of pressure — I thought I would share the email below with you from Senator Harsdorf,” Behling wrote to Cross on March 8.
“Hi, John, This email is long overdue but I wanted to thank you for your leadership on the Board of Regents and specifically chairing the Tenure Policy Task Force,” Harsdorf wrote on Feb. 24. “While many have tried to misrepresent our actions in removing policy from state statutes and instead giving authority to the Board of Regents to develop tenure policy, your thoughtful and reasoned approach has been appreciated.
“Thank you again for your service. I look forward to staying in touch!”
Harsdorf’s email signature included a link to Behling’s op-ed “UW tenure reforms provide flexibility, accountability.”
Frac sand background
Despite Behling’s reticence to comment on tenure policy outside official communications, as an attorney he spoke with some regularity to media on behalf of his frac sand mining industry clients.
He spoke to the Chippewa Herald in 2010 about a “pre-development agreement” with the town of Howard that cleared the way for EOG Resources, a Texas-based energy exploration company, to begin mining sand, a critical ingredient in fracking, a method to extract oil and gas from underground rock.
“Part of that agreement commits us to good faith talks to flesh out the remainder of the mining agreement,” Behling said.
The pre-development agreement was a good idea, Ron Koshoshek, a former chair of the Public Intervenor’s Office, a state environmental watchdog agency, recalled in a recent interview.
Town efforts to regulate sand mining through an ordinance brought legal challenges to its authority to impose zoning regulations, recalled Koshoshek, who taught for 30 years at UW-Eau Claire before retiring in 1999. He was inducted into the Wisconsin Conservation Hall of Fame in 2015.
Koshoshek said he soon realized that town officials were not prepared to deal with the regulatory and environmental issues such large-scale operations as the proposed sand mine and processing plant would bring. The development agreement, suggested by Behling, was a relatively simple way to protect the value of properties near the sand mine, Koshoshek said.
“I think highly of John,” he said. “He was a lawyer for the opposition — he didn’t give anything away. But suggesting a developer’s agreement was a smart idea. It was a very constructive proposal that has benefitted the town.”
Citizen activist Patricia Popple said she was less than happy with her dealings with Behling when he represented EOG in their efforts to open a frac sand processing plant in Chippewa Falls.
Popple, then president of Concerned Chippewa Citizens, had a dispute with Behling over whether she had refused to meet with him and EOG officials after publicly calling on the company to communicate with citizens.
That was how Behling presented it in lengthy comments published in an article in the Chippewa Herald.
Popple said in a recent interview she felt pressured to meet in a small group with frac industry officials, where she felt she might be intimidated into agreeing to their demands. What she wanted was a large, public “town hall” meeting where the community could discuss air and water quality, truck traffic and other concerns, she said.
“I’m not pleased by some of my dealings with John Behling. I don’t think anyone in our group was happy with John Behling,” Popple said. “He was very aggressive.”
Newspaper clippings about the Behling-Popple dispute are included in “Spartacus: Blood and Sand — Moratoria Madness,” a PowerPoint presentation made by Behling and a law firm colleague to a frac sand industry summit in July 2012 in Denver.
The PowerPoint presents moratoriums — temporary prohibitions on the approval of frac sand mines — as thinly disguised efforts by municipalities to stop the activity permanently. The presentation includes tips on how to fight such actions with legal, political and public relations strategies. It counsels companies, for example, to counter public opposition by holding job fairs, and hosting open houses and giving away T-shirts.
The presentation quotes Walker on frac sand mining: “There is a miner on the Wisconsin flag for a reason.”
Behling sounded a similar theme in a 2013 article in the Huffington Post, by way of asserting that mining has been part of the Wisconsin landscape for a long time.
“It’s called the Badger State not because of the animal,” he said, “but because of how the mining activity made it look from a distance, like the hills were populated with large badgers.”
Behling also addressed critics’ complaints that jobs brought into the community by frac sand mining were short-lived and volatile.
“Even if the job is only for 30 years, that’s 30 years of having a job versus standing in the unemployment line,” said Behling, then representing Texas-based Vista Sand, a company that was proposing a frac sand mine in Glenwood City.
In 2013, as towns and municipalities turned to moratoriums to control what by then was an overwhelming number of frac sand mine proposals, the Wisconsin Legislature considered a controversial bill — never passed —that would have restricted municipalities’ authority to regulate them.
Some observers said the bill could backfire on an industry that had managed to site many facilities despite restrictions.
A “complex regulatory environment” is not new to industry, and companies must figure out how to navigate it, Behling told the Wisconsin Center for Investigative Journalism.
Thomas Pearson, an associate professor at UW-Stout in Menomonie, has researched the tactics used by frac sand companies when they seek to open mines and processing facilities.
“In my experience, many frac sand spokespersons dismiss the concerns of critics as unscientific or lacking facts, sometimes stigmatizing opponents as ‘those people who are moved by emotions and fear,’” Pearson wrote in a 2013 paper, “Frac Sand Mining in Wisconsin: Understanding Emerging Conflicts and Community Organizing.”
Pearson also referred to Behling’s advice, as articulated in the “Blood and Sand” presentation, to avoid litigation by defusing community opposition through press conferences, job fairs or open houses.
Bright yellow “Sand = Jobs” T-shirts were appearing at public meetings on mining proposals, Pearson wrote.
The frac sand industry tactics undermined democracy, Pearson said in an interview, by short-circuiting public debate and attempting to circumvent governmental processes through various agreements — including secret deals in which neighbors were paid to support a project, he said.
Sand mining regulation was a red-hot area of practice, Behling told the Wisconsin State Bar’s “Wisconsin Lawyer” in 2014. “It’s almost unfathomable — the pace of real estate transactions and permit applications,” Behling said, adding that he didn’t see it slowing any time soon.
Behling soon took a leave from his law firm to take a job as general counsel and executive vice president for regulatory affairs for Texas-based Smart Sands, Inc. But when dropping energy prices reduced demand for frac sand, stalling operations at nearly one-third of the industry’s 129 Wisconsin facilities by the end of 2015, Behling returned to his Eau Claire law firm.
Many UW System faculty say the tenure policy adopted by the Board of Regents doesn’t adequately protect academic freedom because it allows university administrators too much latitude in closing programs and laying off faculty. It differs in significant ways from the national standard adopted by the American Association of University Professors, they say.
And some say Behling’s leadership on the issue signals a troubling new chapter in UW leadership.
“He represents this managerial culture, this bureaucratic culture that believes shared decision-making is bringing a bunch of people into the room, but not bothering to take their opinions into consideration for a decision probably made long before the meeting was convened,” said David Vanness, an associate professor in the UW-Madison School of Medicine and Public Health and president of the campus chapter of AAUP.
In a message to colleagues urging support of the no confidence vote against UW System president Cross and the Board of Regents, Vanness called the tenure task force under Behling “a sham.” He and other faculty activists object that task force members did not get a chance to weigh in on the draft policy attributed to them before it was forwarded to the Board of Regents.
Donald Moynihan, a professor of public affairs at UW-Madison’s La Follette School of Public Affairs who studies public management, challenged Behling’s apparent belief that great campuses are built by chancellors wielding greater power, rather than connections built with students and communities.
“UW-Madison was ranked as the 25th best institution in the world by one ranking. That’s incredible, and we got there through shared governance, not through the ‘Chancellor as CEO’ model Behling champions,” he said.
And while Behling has used the language of management — flexibility, accountability — the management policies adopted “involve greater bureaucratization of our campuses, while weakening our competitiveness in the academic marketplace,” Moynihan said.
He wonders if regents are fulfilling their duty to explain to elected officials how universities function and when legislative policies are wrong and harmful. The current regents “seem to view themselves primarily as the implementers of the Legislature’s policies,” Moynihan said.
“The UW System needs champions to defend the institution, and I think many faculty believe we don’t have them right now. Regent Behling argued that we need to adopt tenure changes in order to improve our budget prospects with the Legislature. Will he hold himself accountable if the Legislature maintains past cuts?”
Thanks for a thankless job
There was debate over tenure policy — led by regents not appointed by Walker — when the full Board of Regents voted on policy changes on March 10.
Regent Mark Bradley, who was appointed by former Gov. Jim Doyle, opened the issue while Tony Evers, who serves ex-officio as the elected state Superintendent of Public Instruction, offered a series of amendments that failed to make substantive change to the policy.
Regent Jose Vasquez, a Doyle appointee whose term ends this month, took a stand against revising tenure, announcing he was not convinced the system was broken.
Behling assessed the tenure policy process as open and responsive to input, stressing that he met in private with representatives from AAUP and PROFS, the advocacy arm of UW-Madison faculty.
“Anyone who has followed this issue closely will see that these groups influenced our work and my perspective throughout the process,” Behling said in response to a Cap Times question about the influence of legislators. “Throughout the process, I did not have any discussion with elected officials and I only received one unsolicited email.”
As to how his experience as a frac sand lawyer informed his strategy on the tenure issue, Behling replied that his focus was to foster an atmosphere that valued research and discussion.
“I think I drew upon my experience as an attorney, a former legislative staff member and my pride as a UW System graduate and state citizen more than anything,” he said. “We had a tough job. We didn’t agree on every point, but we reached a consensus on many points.”
Millner praised Behling for doing a thankless job well.
“I think he did a fine job. I think it has been a very difficult task because the opposition to doing anything at all made it almost impossible to do anything to satisfy them,” Millner said in an interview.
The no-confidence resolution at UW-Madison revolved around Board of Regent revisions to a tenure policy for the individual campus, something for which every campus will need to win approval under the overarching system wide policy adopted in March.
The no-confidence vote signals serious problems, said Sean McKinniss, a researcher of university governance.
“The sense of dysfunction and anger are inescapable,” McKinniss said. “These votes can bring a lot of anxiety and discord to universities.”
Their purpose, he said, “is to force a dialogue, no matter how difficult, to assess the direction of the university.”