The Big Ten's brazen use of Boardvantage

A lot of questions have been asked about the Big Ten's communication and transparency. Very few have been answered.

On Wednesday, Dec. 9, 2020, there were at least two ballots sent to the members of the Big Ten Administrators Council, which includes the athletic directors and senior women administrators (SWAs) from all 14 of the Big Ten’s member institutions. One Administrators Council ballot was conducted over email, with each of the conference’s faculty athletics representatives (FARs) cc’d on the email. But the other ballot, regarding the conference’s minimum-game threshold for eligibility for the conference’s football championship game, was held via Nasdaq Boardvantage, a platform that Nasdaq’s website describes as “The board portal platform and collaboration solution for boards and senior executives. Learn how Nasdaq Boardvantage helps make board processes paperless and can reduce meeting preparation from hours to minutes.”

As it pertains to the Big Ten, one could argue the most significant word in that description is “paperless,” because the conference has used Boardvantage to shield its internal communication from state public records laws, as reported by The Washington Post earlier in March:

But emails obtained by The Washington Post through public records requests reveal another priority: keeping their discussions from entering public view.

“I would be delighted to share information,” Wisconsin Chancellor Rebecca Blank responded in an email chain begun in August by Michigan President Mark Schlissel, “but perhaps we can do this through the Big 10 portal, which will assure confidentiality?”

The next day, Schlissel told his colleagues: “Just FYI — I am working with Big Ten staff to move the conversation to secure Boardvantage web site we use for league materials. Will advise.”

Does a third-party communication platform, like Boardvantage, provide university leaders with blanket protection from state public records laws?

“Uh, no, is the short answer,” said Adam Marshall, a senior staff attorney for the Reporters Committee for Freedom of the Press, laughing. “No, it doesn’t.

“So how this plays out is going to vary according to the state law that you’re looking at but as a general matter, the way that they define public records laws isn’t contingent upon the format that they’re stored in or usually even the location that they’re stored in. The public records are usually defined functionally. In other words, have they come into the agency’s possession during the course of business? Do they reflect the operations or activities of the government or public officials? Are they used in the carrying out of government business? Those are the types of things that public records laws are concerned with, they’re not concerned with, ‘is it stored on hard drive A or behind a password and username login?’ That doesn’t really matter.”

Out of Bounds provided a list of questions to Big Ten Assistant Commissioner for Communications Adam Augustine more than a week before this newsletter was scheduled to be published and the conference has yet to acknowledge the request. A second request for comment was sent directly to Big Ten Commissioner Kevin Warren and it included a question that asked if the Big Ten’s member institutions were prepared for the possibility of being taken to court by media outlets sometime in the future over access to the conference’s communication on Boardvantage.

Warren did not respond.

The Buckeyes, Badgers, Boardvantage, Barta and the Big Ten Championship

On that Wednesday in December, when the Big Ten Administrators Council responded to multiple ballots, including the one on Boardvantage that ultimately resulted in the change to the conference’s championship game eligibility policy, No. 4 Ohio State led the Big Ten East with a 5-0 record and Indiana was in second place with a 6-1 record, with the former having beaten the latter. But the conference’s rules at the time, prior to the policy change, mandated that teams must play at least six games in order to be eligible for the Big Ten Championship. That week, Ohio State was scheduled to play rival Michigan, which had canceled its game the previous week against Maryland, and likewise, the game between Ohio State and Michigan was canceled on Dec. 8 due to COVID-19 issues within Wolverines’ program.

Despite being a national championship contender, undefeated and ranked in the top four, Ohio State wasn’t going to be eligible for the Big Ten Championship under the conference rules that established a six-game threshold.

The Big Ten waited until early December to change its championship game minimum-game threshold despite Wisconsin having its second and third games of the season canceled due to a COVID-19 outbreak within the Badgers’ program. Wisconsin had been ranked No. 12 in the preseason AP poll and it won its season opener 45-7 against Illinois, in a game in which quarterback Graham Mertz threw five touchdowns and just one incompletion, yet the six-game minimum remained after Wisconsin stood at just 1-0 through three weeks of Big Ten play.

In addition to the questions provided to Augustine and Warren, Out of Bounds contacted everyone who served as a Big Ten athletic director or as a member of the Big Ten’s Council of Presidents and Chancellors (COP/C) during the 2020 college football season. Many of them were asked whether there were discussions about the conference potentially changing the minimum-game threshold after there were COVID-19 issues within Wisconsin’s program, which was coming off of a dominant performance and represented the highest-ranked team in the Big Ten West early in the Big Ten season.

No one responded to the question.

Shortly after 11 a.m. ET on Wednesday, Dec. 9, Big Ten Chief of Staff of Innovation and Operations Jessica Palermo sent a message on Boardvantage – presumably to the Big Ten’s COP/C, because Ohio State President Kristina Johnson was among the recipients – and the subject line of the message read, “Big Ten Football Championship Game.”

Less than an hour later, just before noon Eastern, Big Ten Associate Director of Policy Fred Krauss sent a message, whose recipients included the conference’s athletic directors, that had the subject line “Proposed Change to Tie-Breaker Policy and Email Ballot.”

After Krauss sent the message on Boardvantage about the ballot and the proposed policy change, Big Ten Associate Commissioner for Policy Chad Hawley emailed the Big Ten’s faculty athletics representatives and the subject line was “Heads up on AC Email Ballots.”

“Ordinarily we cc the [Faculty Representative] group on [Administrators Council] email ballots, but this particular email ballot, which relates to the minimum-game threshold for football champ game eligibility, is being conducted via Boardvantage, so there won’t be the normal cc to you guys,” Hawley wrote in the email, a copy of which was obtained by Out of Bounds via a public records request. “Turnaround will also be really tight on this, but nevertheless, wanted to provide a heads up to you all as a group that the ballot was occurring. There will actually be a different [Administrators Council] email ballot later today relating to a few other issues, but we won’t be using Boardvantage so you guys will be cc’d as normal.”

Just before Hawley emailed the conference’s faculty athletics representatives, the first reply to Krauss’s message appeared in the inboxes of Big Ten Administrators Council members. The first reply, which was from University of Michigan Senior Woman Administrator Elizabeth Heinrich, and each subsequent reply had the exact same subject line – “Re: Proposed Change to Tie-Breaker Policy and Email Ballot.” According to the documents obtained by Out of Bounds, no individual replied to the message more than once and no single university had two different representatives respond, which could suggest that the replies may have been the votes on the policy change, which were intentionally shielded from public view.

The records obtained show that Administrators Council members from 11 of the Big Ten’s 14 member institutions replied to Krauss’s Boardvantage message about the tiebreaker policy and the related ballot:

  • 12:09 p.m. ET: Michigan SWA Elizabeth Heinrich

  • 12:12 p.m. ET: Wisconsin SWA Katie Smith

  • 12:19 p.m. ET: Nebraska SWA Pat Logsdon

  • 12:26 p.m. ET: Ohio State AD Gene Smith

  • 12:29 p.m. ET: Iowa AD Gary Barta

  • 12:30 p.m. ET: Rutgers AD Pat Hobbs

  • 12:47 p.m. ET: Illinois AD Josh Whitman

  • 12:56 p.m. ET: Maryland AD Damon Evans

  • 1:15 p.m. ET: Northwestern AD Jim Phillips

  • 1:29 p.m. ET: Michigan State AD Bill Beekman

  • 2:03 p.m. ET: Minnesota AD Mark Coyle

Out of Bounds obtained the records from Ohio State. While many universities will not process a public records request unless the requester provides specific keywords or exact email addresses, Ohio State University has previously informed Out of Bounds that it does not perform keyword searches as part of its process of fulfilling public records requests. As it pertains to public records requests for emails, the university simply asks for requesters to provide a topic rather than specific keywords, then a University Communications employee will later provide a response.

As part of the request, Out of Bounds requested “a copy of any emails, as well as any related attachments, sent to or from any combination of Ohio State AD Gene Smith, football coach Ryan Day or President Kristina Johnson on Dec. 9, regarding the Big Ten's decision-making process and final decision to vote to remove the minimum-game requirement for the Big Ten Championship in football.” Among the records that were provided by Ohio State, the records only show responses to the Boardvantage message from representatives from 11 of the Big Ten’s 14 member institutions. That potentially leaves the votes unaccounted for from three schools – Indiana, Penn State and Purdue – as part of a process that Hawley had admitted internally would require a “really tight” turnaround. That doesn’t mean Administrators Council members from those three schools didn’t vote, but there were no replies among the documents that were obtained.

A spokesperson at Penn State declined to make Athletic Director Sandy Barbour available for an interview. Out of Bounds followed up with the spokesperson to ask if Penn State voted on the ballot and if not, why not?

The Penn State spokesperson did not respond to the follow-up question.

Indiana Athletic Director Scott Dolson and Indiana University President Michael McRobbie did not respond to a request for comment, and neither did Purdue Athletic Director Mike Bobinski nor Purdue University President Mitch Daniels. Separate, subsequent requests for comment through football media relations staff members at both Indiana and Purdue were ignored.

While some media outlets described the vote as unanimous in their coverage of the Big Ten’s decision to change its minimum-game threshold to allow Ohio State to advance to the Big Ten Championship, for what it’s worth, the official press release never used the word “unanimous,” nor did the press release technically say that representatives from every school had even voted. The release only stated that the council, which the release said includes all 14 ADs and SWAs from the Big Ten’s member schools, had voted to change the minimum-game requirement, in collaboration with the COP/C and the conference office.

Among the questions that Out of Bounds provided to Augustine was one that asked if every school had participated in the Administrators Council ballot and if the vote was unanimous. The Big Ten never responded.

It’s notable, too, that among the 11 responses, which all had the matching subject line, “Re: Proposed Change to Tie-Breaker Policy and Email Ballot,” there was one reply from Barta, who served as the College Football Playoff selection committee chairman last season.

Through an athletic department spokesman, Barta said in a statement, “I am re-confirming I recused myself from any discussion or votes related to the topic of changes to the Big Ten Football Championship eligibility requirements.”

In December, Barta told The Athletic, regarding a Big Ten athletic directors call held that Wednesday morning in December, “Before the call, I reached out to the commissioner (Kevin Warren) and I just let him know because of my role as CFP chair, I will be on the call so that I can listen and I can participate that way. But I let him know ahead of time that I wasn’t going to contribute to the discussion, and I let him know ahead of time that Iowa would recuse itself. I would recuse myself from a vote and that our institution would recuse itself from the vote, which I did.

“I intentionally did not participate in the discussion because I didn’t want to sway it either way. But I also wanted to listen and just hear the conference talk it out and work it through.”

It’s unclear why there’s a record of him responding to a message regarding a proposed policy change and an Administrators Council ballot that afternoon on the conference’s confidential, third-party communications platform, after his stated recusal from participating in any discussion or voting on the issue.

Barta also told The Athletic, “I’m just being transparent with both sides. Being transparent with the Big Ten and being transparent with the CFP. And that’s the best way to acknowledge and make sure that there is no conflict of interest. So, yes, I’ve already spoken to (CFP executive director) Bill Hancock, and just made it clear; he knew I was going to be on the call. He knew I wasn’t going to participate in the discussion, and he knew that I was going to recuse myself if there was a vote.”

The night before the vote, on Dec. 8, Barta answered a question on a College Football Playoff media call about his potential conflict of interest by saying, “What I will tell you is I am going to go into it the way I try to go into everything, and that is I'm going to do the right thing, what I believe is the right thing for college football, for the CFP.”

Out of Bounds provided a list of questions to the College Football Playoff (CFP) to ask if the organization is aware of the full extent of whatever level of involvement Barta did or did not have in the Big Ten’s discussions and decision-making on Dec. 9. The CFP did not respond.

Just after 2:30 p.m. ET on Dec. 9 – before there was an official, public resolution to the Administrators Council ballot and shortly after the final record that shows an Administrators Council member (Minnesota AD Mark Coyle) replying to the message about the ballot – Ohio State Assistant Athletic Director of Facility Scheduling & Events Ericka Hoon emailed Ohio State athletic department staff members, writing, “I wanted to share with you that we will NOT be hosting a game this weekend. This will be announced publicly at a later time, so please keep this internal but we felt it was important for you to know for your planning purposes.”

Then at 3:07 p.m. ET – just shy of three hours after the first reply to the ballot on Boardvantage – Palermo, the Big Ten chief of staff, sent a new message on Boardvantage to the conference’s COP/C members and athletic directors that had the subject line “Football Championship Game Tiebreaker,” which potentially signaled the official conclusion of the voting and could have cemented the policy change.

Just after 5 p.m. ET, the Big Ten sent the official press release, announcing the policy change with the all-caps subject line “OHIO STATE WILL ADVANCE TO BIG TEN FOOTBALL CHAMPIONSHIP GAME.”

“The reality is that in the United States, we have put in place laws, public records laws, open meetings laws, and other transparency provisions because we believe as a fundamental matter, that the actions of officials are taken on behalf of the public and the public has a right to understand what they are doing,” said Marshall, the senior staff attorney. “So it almost doesn’t matter in terms of the importance or the inconsequential nature of something, what matters is complying with these laws because we’ve decided that that’s the type of democratic society – an open and transparent society – that we want to have.

“I am concerned, of course, if a public official is hiding something that seems like small potatoes. What does that say about their attitude toward transparency as a general matter and what does it mean for transparency when it comes to things that are probably of interest to a wider segment of the population? But on another level, I think it’s the principle of the matter that is most important. Any action that the officials are taking in the course of their duties is the type of thing that the public should be able to know.”

Phillips, the former Northwestern athletic director who has since been named the commissioner of the ACC, forwarded the Big Ten’s press release to Smith, Ohio State’s athletic director, along with the comment, “Congratulations, Gene! GO ‘CATS and BUCKEYES.”

“Thanks Jim, appreciate you,” Smith responded one minute later. “Congratulations to you too…”

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There’s smoke but is there fire?

In one email exchange obtained by The Washington Post, University of Wisconsin Chancellor Rebecca Blank wrote to other university presidents and chancellors within the Big Ten, “[University of Michigan President] Mark [Schlissel] and others — please note that anything that arrives in or is sent from my email can be requested as a public record. I know I’m not the only one for whom this is true.”

The Washington Post reported that University of Nebraska Chancellor Ronnie Green, as part of his response to Blank and others, wrote, “‘Ditto’ to Chancellor Blank’s request/comment. I share that same concern.”

The Washington Post reported that in an individual email that was sent to Blank, Schlissel wrote, “becky, if you simply delete emails after sending, does that relieve you of FOIA obligations? I share your concern of course.”

The Washington Post continued:

There is no indication that Schlissel or Blank deleted emails to evade public records laws. Blank told Schlissel that her deleted emails are subject to disclosure through the Freedom of Information Act and she would be violating state law if she permanently deleted them.

Schlissel, who has been Michigan’s president since 2014, responded: “that’s really interesting and difficult. Thanks for explaining.”

Out of Bounds provided a list of questions to Blank and one asked whether Blank is aware of any Big Ten athletic directors or members of the COP/C who have ever deleted, or who have ever encouraged a colleague to delete any emails regarding Big Ten athletics in an effort to avoid state public records laws. A university spokesman responded on behalf of Blank, “Chancellor Blank has no additional comment on these issues.”

The University of Nebraska provided the following statement on behalf of Green: “Chancellor Green is very mindful of and respects the intent of Nebraska’s public records laws. Any communication with his fellow Big Ten presidents and chancellors is consistent with Nebraska’s requirements.”

While intent is difficult to prove, one Big Ten athletic director – by the admission of the athletic director’s own university, as part of the university’s response to a public records appeal filed by Out of Bounds – either hard deleted an email that contained the Big Ten’s football and TV scheduling models within a week and a half of receiving it, or the athletic director deleted the email normally, then emptied the deleted items folder. Based on the way the email was deleted, it wasn’t located during the university’s search for responsive documents while fulfilling a public records request, although a copy of the email was obtained from another university, showing that the athletic director had in fact received it – and then permanently deleted it.

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It’s hard to pinpoint when the Big Ten’s use of Boardvantage started and what its legacy will be

When I learned of the Big Ten’s use of Boardvantage, I began making public records requests last fall for the automated alerts that Big Ten athletic directors and COP/C members receive from the platform, in an attempt to pick up the limited information that’s available from Boardvantage’s email alerts.

When Warren recommended in early August – prior to the conference’s decision to postpone fall sports – that the conference’s fall athletic programs remain in the “acclimatization period,” he updated the conference’s COP/C members and athletic directors using Boardvantage.

When the Big Ten postponed fall sports, the conference shared its updated press release with the COP/C members before it was released to the public.

When Warren spoke on the phone with former President Donald Trump about the football season’s potential return, the conference updated the COP/C members via Boardvantage.

On March 7, the Big Ten office sent a message on Boardvantage that was titled “Securian Financial Board.” Four days later, Warren was officially named to the company’s board of directors. On March 8, there was a message regarding the fan attendance at the championships for the Big Ten’s Olympic sports, plus the conference office sent another message that day that was vaguely titled “Memorandum.”

It’s unclear when the Big Ten started using Boardvantage or whose idea it was to implement the platform. Among the questions provided to Augustine and Warren was a question about when the conference started using the platform. Former Big Ten Commissioner Jim Delany didn’t respond to an email that asked if the conference used Boardvantage or a similar third-party communication platform during his tenure. A request was also made to the Minnesota Vikings, where Warren previously worked as Chief Operating Officer, and a spokesman told Out of Bounds that the Vikings don’t use Boardvantage within their organization.

It’s also unclear if new ACC Commissioner Jim Phillips, who was previously believed to be on the short list of frontrunners, if not the favorite, to be named Big Ten Commissioner before Warren was named to the position, has since implemented Boardvantage or another third-party platform through his new position in his new conference.

Maybe there’s a reasonable explanation as to why the ballot for the Big Ten’s proposed change to its football championship game tiebreaker policy had to be conducted via Boardvantage, even though another Administrators Council ballot was sent the same day through an email, with the conference’s faculty athletics representatives cc’d, rather than through Boardvantage.

Maybe there’s a reasonable explanation as to why documents show that a Big Ten associate director’s message on Boardvantage about the ballot and the proposed policy change elicited a response from the College Football Playoff committee chairman, who restated that he had recused himself from discussions and voting, while simultaneously, the same documents don’t show any responses from Indiana, Penn State or Purdue – schools that, in order, are the university that was most negatively affected by the policy change, that university’s rival, and the school whose Big Ten East football program is arguably Ohio State’s greatest challenger in the division, if not the conference.

Maybe there’s a reasonable explanation as to why – if all three of those schools did in fact vote on that Administrators Council ballot on Boardvantage – their responses didn’t show up in a response to public records request from a university that refuses to conduct specific keyword searches when it accepts public records requests.

Maybe there’s a reasonable explanation as to why numerous administrators within the conference, when contacted for this newsletter, didn’t even offer a “no comment” or a carefully crafted official response, but instead chose to never acknowledge the questions regarding transparency, potential conflicts of interest and the conference’s attitude toward – if not compliance with – public records laws.

Maybe all of this is somehow a big misunderstanding, or just smoke and mirrors due to incomplete access to the conference’s communication. Maybe it’s a series of standard operating procedures within the conference, which just so happen to come with a lot of bark and little bite, for which someone on the outside could never understand. But if that’s the case, then it’s worth asking: then why all the secrecy? Why use a third-party communication platform, which may not actually grant the conference’s member schools the legal protection that they so clearly believes it does, if the few aspects of Boardvantage messages that are currently accessible to the public might appear more damning that the actual contents are?

For a conference whose communication and transparency has been criticized since last August – including publicly by its own players (see: Nebraska), players’ parents (see: the protest at Fogo de Chao), coaches (see: Ohio State football coach Ryan Day) and administrators (see: how much time do you have?) – how reasonable can we expect the conference’s explanations to be, if and when it ever answers that ever-growing list of questions? And how much would those answers just be excuses and not explanations?

Out of Bounds provided every member of the Big Ten’s COP/C, everyone who served as an athletic director in the Big Ten last football season, 19 faculty athletics representatives from the conference, the conference office, its current commissioner and its former commissioner the opportunity to provide answers to these questions. Frankly, other than Barta, who once again stated that he recused himself from participating in any discussions or voting on the Big Ten Championship Game eligibility requirements, no one else among the more than 50 individuals who were contacted for this newsletter even attempted to answer specifically any of the questions asked of them.

Most of them never acknowledged the (sometimes repeated) requests for comment and each of the handful of responses that Out of Bounds did receive came from a spokesperson.

Given how this academic year has gone in the Big Ten, how much transparency could you expect, especially when the questions asked of its leaders were about the conference’s own lack of transparency?

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Thank you for reading this edition of Out of Bounds with Andy Wittry. If you enjoyed it, please consider sharing it on social media or sending it to a friend or colleague. Questions, comments and feedback are welcome at andrew.wittry@gmail.com or on Twitter.