UW-Madison Bascom Hall

A Dane County circuit judge recently ruled that UW-Madison broke the state’s public records and open meetings laws — violations that may cost the university more than $40,000.

UW-Madison’s School of Medicine and Public Health failed to turn over records relating to how a committee awarded millions of dollars from an endowment for public health projects, according to the ruling. The committee also failed to properly inform the public why it went behind closed doors in a 2016 meeting.

The judge also noted that “in this grant cycle alone” the committee funded two projects that were not as highly rated as others, and those two projects were associated with committee members.

The June 13 court order requires UW-Madison to pay back the plaintiff’s legal fees or to appeal. University officials said they had not received information on the fees and are still considering whether to appeal.

An attorney for the plaintiff, Christa Westerberg, said legal fees in the more than two years spent litigating the suit will be “north of $40,000.”

Westerberg, of the Madison law firm Pines Bach and co-vice president of the state’s Freedom of Information Council, said UW-Madison “aggressively litigated” the lawsuit in a way she had not seen before.

For UW-Madison, the stakes in the suit are high.

“This is a case about whether or not the university can protect the integrity of research and programs at UW-Madison by maintaining the confidentiality of reviewer comments,” UW-Madison spokesman John Lucas said.

Pines Bach attorneys say the university has until July 29 to file a notice to appeal.

Request denied

Kevin Wymore is a former health policy analyst who worked for 17 years with the state’s Division of Public Health under the Department of Health Services.

In that position, Wymore closely followed the Wisconsin Partnership Program, an endowment fund run through UW-Madison’s School of Medicine and Public Health that was established after the nonprofit Blue Cross Blue Shield United of Wisconsin became a for-profit company in 2000 and had to reimburse the state for tax breaks.

The school’s Oversight and Advisory Committee has awarded grants through the endowment since 2004 for projects designed to improve the health of state residents.

Wymore continued to follow the program’s projects after retiring and, in 2016, attended a public meeting in which grant applicants presented and staff projected the proposals’ scores onto a screen.

UW-Madison later denied Wymore’s request for documents, including the score sheet projected at the public meeting and comments on the projects from outside reviewers.

Wymore filed suit in February 2017 and within a week the university released the score sheet. But it continues to fight against the release of reviewer comments.

UW-Madison officials argue that releasing the comments will “create a chilling effect and reduce the candor that is so important in selecting and developing the most promising health-related research.” They pointed to procedures followed by other grant organizations, such as the National Institutes of Health, as reason not to release the comments.

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Judge Rhonda Lanford ruled the money allocated by the Oversight and Advisory Committee is for applied public health grants, not research grants, so the comparison was incomplete.

She also said a closed-door meeting held later that year to “confer with legal counsel” was insufficient in its reasoning to the public.

Conflict of interest?

Records show two projects that had connections to committee members received scores of 86 and 90. Both were awarded a $1 million grant. Two other projects, each with scores of 91, were not awarded grants.

The nonpartisan Legislative Audit Bureau recommended in 2015 that committee members with involvement in a particular project step away from the decision on whether to award it. The committee subsequently adopted a conflict-of-interest policy.

Lucas said the awarding of lower-ranked projects did not violate the committee’s policy because involved committee members recused themselves from the discussion and vote. Meeting minutes reflect those recusals.

He also said the committee reserves the right to fund the projects most aligned with its goals and objectives. In this particular case, he said one of the higher-ranked projects was better suited for a different grant and ultimately received funding through a different program.

Lanford said that’s all the more reason to release the comments.

“Public disclosure will better allow the public to assess whether the correct proposals are being funded and ensure there are no improper conflicts,” she wrote. “Release of reviewer comments can help counteract any suggestions of improper bias or favoritism.”

‘Greatly disappointed’

Like Wymore, Tom Hefty has followed the projects funded by the endowment for years. He served as Blue Cross Blue Shield CEO at the time of the endowment’s creation.

Hefty was surprised by the program’s most recent five-year plan approved by the UW System Board of Regents in December. He said it lacked information on projects from past years, which has been included in previous five-year plans.

Hefty said he submitted a public records request last fall for data relating to outcomes of the grants previously awarded and was told by the university that there was no data.

In response to Hefty’s criticism, UW-Madison pointed to its annual Outcomes Report, which covers the impact of projects that concluded within that year.

Hefty said he is troubled by the university’s lack of transparency, both in the reporting changes and Wymore’s lawsuit.

For Wymore, he saw his request as one rooted in noble intentions.

“I simply believe in open government,” he said. “With an endowment in excess of $350 million, the public deserves to know how it’s spent.”

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