MOHELA firing planned in secret calls

~ The attorney general has sued the board, alleging violations of the open meetings law.

Four state Higher Education Loan Authority board members held private, one-on-one discussions last January about firing then-executive director Mike Cummins because he opposed Gov. Matt Blunt's plan to auction off the agency, according to documents filed in a open meetings lawsuit against the board.

Answers to questions posed by lawyers from Attorney General Jay Nixon's office show that before the board's Jan. 24 meeting in which Cummins was fired, member James Mauze separately conversed with three other board members about Cummins.

"Mauze and the other three members, in separate individual phone calls, discussed that they had learned that" Cummins "had been in Jefferson City lobbying against the governor's plan relating to MOHELA," the documents said. Lawyers for Mauze prepared the documents in response to questions from Nixon's office.

According to the documents, Cummins was under board orders to go to Jefferson City to explore rumors about the possible sale of MOHELA but not to lobby for or against it. The documents said that because Cummins had violated the board's directives, the four members believed he should be terminated and replaced as executive director.

In addition to discussing Cummins' performance, Mauze faxed to the three other board members copies of resolutions to fire Cummins and a step-by-step process as to how it should be carried out, according to the documents. Together, Mauze and the three other board members constituted a majority of the seven-member board.

The minutes of the board's Jan. 24 meeting show that Mauze and the three other members -- James Ricks, Kathryn Swan and Gregory Fitch -- all voted to fire Cummins. Three other members opposed.

Efforts to reach Mauze and his lawyers were unsuccessful. Mauze, Ricks, Swan and Fitch are no longer on the board.

Swan is the chairwoman of the Missouri Coordinating Board for Higher Education and a Cape Girardeau resident. Ricks is also from Cape Girardeau.

Allan Purdy, a former board member who lives in Columbia, Mo., said he has been told that Cummins is still on the MOHELA payroll and that he believed his salary is $350,000 annually. "My theory is that he was fired summarily without a hearing and they are still paying him because they figure if they fired him outright, they would probably get sued for firing him without cause," Purdy said.

Attempts to reach Cummins' lawyer were unsuccessful.

Karen Luebbert, board chairwoman, Tuesday directed an inquiry about Cummins' pay to the agency's administrators. Will Shaffner, MOHELA's associate director for business development, said he could not answer questions about Cummins' salary or position because they were personnel matters.

Nixon sued the MOHELA board in February, alleging 12 violations of the state's Open Meetings and Records Law between Jan. 20 and Jan. 31. In addition to accusing the board of conducting public business behind closed doors, the suit said board members and staff illegally exchanged information in a series of e-mails and telephone calls.

Board members have denied breaking the open meetings law, and the agency is fighting Nixon's suit, filed in St. Louis County. The Tribune obtained copies of some of the documents filed in the case through an open records request to Nixon's office.

Jean Maneke, a lawyer who specializes in open meetings and open records issues, said one-on-one conversations are usually not seen as a violation of the Sunshine Law. However, there is language in some court decisions indicating it could be found to be a violation if it seemed designed to circumvent the law.

"Given the right set of facts, a court might find that you can't orchestrate a decision of the quorum of the board that way, through one-on-one discussions," Maneke said.

After Cummins was fired, the MOHELA staff scrambled to find an alternative to Blunt's plan to sell all the agency's assets. The new plan provided for a gradual sale of some assets while at the same time keeping the agency in the student loan business.