Rebuilding UNC Governance: The Governor's appointment powers for the campus Boards of Trustees
Before making the argument, however, you would have to get by the Governor's legal/political counsel, who would be advising against anything that doesn't result in aggrandizing the Governor's partisan capital. That would have been a very hard sell when the Governor was first elected, and was fighting some potentially more easily winnable battles. But it might be easier now if he wanted to start building some enthusiasm among supporters of higher education in North Carolina.
So here is the letter that the Governor's lawyer would get, and the analysis/brief the Governor might find useful to consider:
____________________________________________________________________
Dear [Gov. Cooper's legal counsellor);
It would be presumptuous of me to nag about this – the governor will of course decide for himself whether to defend the prerogative powers of the Executive -- but as those powers are a matter of critical importance for University governance, and H17 establishes a foundational charge for faculty concerns about “undue political influence” in University governance (and thus violating SACS-COC standard CS 3.2.4), I thought I would give you a heads up about where the faculty push back prompted by H17 ought to go.
The reason I write is that while preparing that accreditation brief, I have become even more convinced there is a constitutional case to be made here. The SACS-COC argument is complementary to the constitutionality argument, so I have for the purposes of this communication framed the analysis (attached) with juridical intent.
The argument is elaborate, but can be summarized this way:
The recent action of the General Assembly in H17, usurping the Governor’s authority to appoint members of Boards of Trustees of the constituent UNC institutions, is unconstitutional [or, an action of “undue political influence”] because it:
1. --Abrogates the historical, theoretical, and statutory recognition of the University as an Executive agency.
2. ---Terminates the essential participation and/or presence of executive authority in the governance of the University that has been in place since the establishment of the institution in its 1789 charter.
3. ---Contravenes all reasonable reconstructions of legislative and/or voter expectations of executive authority in University governance presupposed in all statutory and/or Constitutional actions shaping the current practices of UNC governance.
4. Establishes a mode of governing body appointment that contradicts received practical and theoretical understandings of potential conflicts between legislator interests and comprehensive public interests.
5. ---Has no analog in higher education governance anywhere in the United States
6. ---Violates received interpretations of the governance principles informing American democratic republicanism.
I don’t know if the Governor would find this convincing or worth pursuing, but I do know that as a matter of establishing precedent and securing the powers of future officeholders, many faculty may be inclined to take up the cudgels to defend the executive’s prerogative authority of even if the current governor is not.
Let me know if you might want to discuss these matters (again?) to press out their logic. If I don’t hear from you, I’ll assume the Governor doesn’t think he has a dog in this fight, and I will move on helping
Best regards,
Cato’s Ghost
Cato’s Ghost
Still Living in an idealized version of the ‘long 18th century”
Analysis of H17 as unconstitutional (or: establishing evidence of “undue political influence,” contra SACS-COC GS 3.2.4)
Premise:
It is unconstitutional [an action of “undue political influence”] for the General Assembly to usurp the Governor’s authority to appoint BoT members.
Argument:
1. The University is an executive agency, and the governance structure of the University has always (until H17) recognized that fact by an appropriate articulation of Executive branch authority through direct Executive branch participation in University governance, and/or indirectly through selecting persons responsible for University governance.
2. The recent action of the General Assembly in H17, usurping the Governor’s authority to appoint (approximately) 33% of the membership of Boards of Trustees of the constituent UNC institutions, is unconstitutional [an action of “undue political influence”] because it is:
a. an historically unprecedented departure from time-honored practices of Executive authority in University governance;
b. a radical departure from the practical and statutory circumstances of University governance in place when, and in terms of which, legislators and voters approved the Constitutional provisions affecting University governing authority.
c. an action, and presupposed theoretical scaffolding, underwriting a new selection protocol that violates fundamental principles of representation embodied in statute that established the current structure of University governance.
d. a model of public higher education governance that has no practical or philosophical analog in the United States today.
e. an abrogation of even the most generous interpretation of legislative supremacy possible under fundamental principles of republican government, e.g., separation of powers, checks and balances, limited and specific legislative authority, limited and specific executive authority, etc.
Reasoning, per 2. a-d.:
(2.a.) Continuous presence of Executive authority in University governance
1. When established in 1789, and until 1804, the UNC governing authority was self-perpetuating body comprised of members with life-long appointments, five from each of the judicial districts.
By explicit assignment of University governing authority to an independent corporate entity, the legislature clearly intended the University to be an Executive agency, with its powers and prerogatives exercised independently of close legislative management.
2. From 1804 (due to the ‘Escheats controversy,’ which William Davie described as a form of legislative hostility that gave NC a reputation as a state of “semi-barbarians, among whom neither learning, virtue nor men of science possess any estimation”) to 1835, the authority to fill a vacancies on the Board of Trustees was surrendered to the General Assembly, and the Governor now served as ex officio Chair of the Board of Trustees.
Even under this arrangement, which scholars have interpreted as a concession to partisan overreach, the role of Executive authority in the governance of the University was recognized by the appointment of the Governor as ex officio chair of the Board of Trustees.
3. In 1835, and until 1868, practical management of the University was effectively in the hands of the Executive Committee of the Board of Trustees, a body selected by the Trustees with the Governor serving as the ex officio Chair of the Executive Committee and the Board. In addition, the election of the Governor was shifted from a vote of the legislature to a popular vote.
This arrangement reinforces recognition of Executive responsibilities in the management of University governance in the office and authority of the Governor -- once a legislatively and now a popularly elected position -- as Chair of the body and its executive. The fact that the Governor retained this authority as that office attained a status of greater independence from the legislature demonstrates the essential importance of the Executive in University governance.
4. The 1868 Constitution, developed under the auspices of federal law, shifted appointment authority for the trustees from the General Assembly to the newly created Board of Education, members of which were appointed by the Governor and confirmed by the General Assembly in joint session. The Governor remained ex officio chair of the Trustees and its Executive committee, which now included all members of the Board of Education.
Only four of the current Trustees were appointed under the new arrangement, and a large number of the current trustees refused to resign or hold their places in trust for the new appointees.
The legal issues were brought to a head in 1871 by a bipartisan effort of University supporters to amend the 1868 Constitution and restore appointment authority for the Board of Trustees to the General Assembly. That amendment was promulgated in 1873.
In keeping with the precedent, the Governor continued to serve as ex officio Chair of the Board. A separation of powers indictment was mounted by the sitting Governor (Tod R. Caldwell), who refused to recognize the old authority of the legislature to appoint Trustees, and defended the new appointment procedures as the realization of appropriate executive prerogative. In suits that followed, the Orange County Superior Court decided in favor of the Governor (in June 1874), but that decision was overturned by the NC Supreme Court in favor of the extant Trustees and other plaintiffs seeking the reestablishment of legislative prerogative (University of North Carolina v. McIver, 1875).
In their opinions, Justices Bynum and Pearson agreed that the 1873 amendment was both procedurally and substantively defensible, and gave as part of their justification the historical precedent of Trustee appointment procedures – and by extension the Executive role in University governance -- previously in place. As Bynum noted, “the purpose of the amendment under discussion avowedly was, and the public debates resulting in this amendment, show beyond cavil, that its purpose was to restore the University to the same form of government which existed under the old Constitution, and which, it was believed by its advocates, would restore that school of learning to its former prosperity and reputation.” Justice Pearson, concurring, argued “it was naturally to be expected that the old mode would be again adopted.”
By this reasoning, both the appointment authority of the General Assembly and the expectation and propriety of Executive participation in University governance was reaffirmed in practice under the auspices of the (amended) 1868 Constitution.
This is the constitutional grounding of the current (1971) NC Constitution provisions regarding Board appointment authority.
The importance of this precedent is that it both followed a full Constitutional Convention and revisions, that Executive prerogative was maintained in University governance even after constitutional challenges to legislative authority – the only University governance case in state history -- mounted by the Chief Executive, and (also apropos point 2.b., as discussed below) it embodied the context of approval for what would become current constitutional arrangements.
5. In maintaining precedent, the Governor remained the ex officio Chair of the Board of Trustees until 1972.
6. In buttressing the precedent of Executive participation in University governance, in 1909 the state Superintendent of Instruction was made in ex officio member of the Board (1909 NC Public Laws CH 432).
7. Further buttressing the precedent of executive participation, in 1941 all former Governors were made “honorary” University trustees for life (1942 NC Public Law ch 136).
8. In the UNC consolidation of 1972, a number of governance changes were made, but the principle of Executive presence in University governance was maintained. Although the Governor and Superintendent of Instruction were dropped ‘by silence’ in the radical reconstruction of University governance, the Executive presence and ideal was preserved in three ways:
a. in the transition period to the establishment of the new Board structure, the Governor served as the interim chair of the new Board of Governors, until December 31, 1972 (NC G.S 116-5(d).
b. In the transition period to the establishment of the new Board structure, the Governor was empowered (in NC G.S.116-31(c)) to fill any campus Trustees vacancies after July 1, 1972, ending July 1 1973.
c. for the first time, appointees to the new Board were required by law to act on an Executive, statewide interest and perspective, rather than in a legislative manner as for representatives of a more narrowly circumscribed constituency. By law [1971 NC session laws CH 1244, s 1; G. S. 116 – 7 (a).], members were "charged with the responsibility of serving the best interests of the whole State.”
d. in the establishing statute for the new system governance structure (see NC G.S. 116-31(d)), the appointment authority for the constituent campus Boards of Trustees was devolved and insulated from the legislature by vesting appointment authority in the system Board of Governors, and strengthening the Executive perspective by securing to the governor appointment of 4 of 12 Trustee seats on each campus board.
9. In 1991, the General Assembly further strengthened the precedent of Executive presence in University governance by appointing “any person who has served at least one term as a member of the Board of Governors after having served as Governor of North Carolina shall be a member emeritus of the Board of Governors, with all the rights and privileges of membership…"(in G.S. 116-6(g)).
SUMMARY per 2.a.: since 1789, there has been a consistent and significant Executive branch presence in the governance structures of the University of North Carolina. The most recent expression of that consistent and significant presence was the appointment authority exercised by the Governor for 4 of 12 members of the constituent campus Boards of Trustees. This authority is exercised without any direct legislative interest in counter-balance. That balancing effect is fully realized indirectly through legislative authority over system Board of Governors appointments. H17 strips a critical expression of Executive presence, terminates a consistent precedent and ideal in place since the founding of the University, and establishes a radically imbalanced corporate governance structure in the University.
(2.b.) Abrogation of legislative and voter intent
As demonstrated in the discussion above, on the persistent Executive presence in University governance, every significant alteration in the statutory and constitutional provisions of the University governance structure has occurred in the context of long-established and practiced expectations of University governance as requiring Executive participation and perspective appropriate to the standing of an independent corporate governing body.
SUMMARY per 2.b. : H17 is antithetical to any reasonable account of legislative and voter intent in the processes of approving the establishment or modification, whether by statute or constitutional provision or amendment, of University governance structures. That intent would most certainly have recognized the propriety and desirability of Executive authority presence in University governance.
(2.c.) Problematic practical/theoretical presuppositions of H17
Under the new Board of Trustees appointment protocols of H 17, the Governor is stripped of appointment authority, and those appointments will now be held by “Four members appointed by the General Assembly under G.S. 120-121, two of whom shall be appointed upon the recommendation of the President Pro Tempore of the Senate and two of whom shall be appointed upon the recommendation of the Speaker of the House of Representatives.”
In effect, this provision replaces a statewide perspective presupposed in Executive authority, and invests extensive authority in the parochial perspective of two individual legislators representing the partial interests of only several thousand North Carolina citizens.
This is clearly contrary to the intent of the framers of the current University governance structure. In General Statute 116, they clearly intended that any member of any governing body should have a more comprehensive perspective than any individual legislator or special interest group. For example, Board of Governors members were charged (in 116 – 7 (a)) to realize “the best interests of the whole State” and to attend “the educational needs and desires of all the State’s citizens” – not to be influenced by the demands of electoral competition.
Moreover, the framers were sharply cognizant of potential conflicts of interest that might be caused by legislative interests and the responsibilities of system and the campus trustees. Thus did they require (in G.S. 116-7(b) and 116-31 (h)) that no University Governor or Trustee, or governor or trustee spouse, could simultaneously serve as a member of the General Assembly.
SUMMARY per 2.c.: The provisions of H 17 allowing the Speaker of the House, and the Senate President Pro Tempore, to nominate members of the constituent campus Boards of Trustees is antithetical to time-honored principles of political architecture intended to minimize if not mitigate instances where parochial and especially electoral interests may supplant public interests. Those principles are clearly reflected in the provisions of GS 116 –7 and 116-31, forbidding simultaneous service as both legislator and governing body member.
(2.d.): Idiosyncrasy of North Carolina public higher education governance structures
The improprieties noted above may be considered as artifacts of the idiosyncrasies of North Carolina public higher education governance structures. In separate reports on UNC governance, both the Pope Center (2006) and the North Carolina Center for Public Policy Research (NCCPPR) (2006) argued that there were significant practical and theoretical deficiencies – and potential for corruption – in the absence of checks on legislative supremacy in the Constitutional provisions for University governance. Only one other state in the US (New York) has analogous governing body selection procedures, and the hyperpartisan manipulation of the governing body appointment authority by Democrats has elicited objections from the minority party, members of whom have proposed legislative remedies that would are remarkably suggestive for possible remedies here in North Carolina (if the Democrats here had the same kind of nonpartisan intent as the Republicans in New York!).
SUMMARY: The actions of H17, stripping a last vestige of Executive influence in University governance, further distances this state from national norms of best practice in University governance structures, a fact readily verified in the 2006 Pope Center and NCCPP reports on UNC, as well as numerous governance publications by national higher education policy organizations, including the American Council of Education (ACE), Association of American Colleges and Universities (AACU), Association of Governing Boards of Universities and Colleges (AGB), National Center for Public Policy and Higher Education (NCPPHE), American Association of University Professors (AAUP), American Council of Trustees and Alumni (ACTA), and the University of Southern California Center for Higher Education and Policy Analysis (CHEPA), among others.
(2.e) Departure from principles of republican government
Numerous comments on recent legislative actions made by legislators, legislative leaders, and opinion disseminators for the majority party, have emphasized the necessity of these actions as responses to ‘divided government,’ and justified as a return to principles of legislative supremacy.
These claims are misleading, and particularly so in the case of H17.
The weak executive authority reflected in the structure of governmental powers in the North Carolina Constitution is an artifact of 18th century “Commonwealthman” (and primarily English) republicanism, which opposed strong executives because of the historical precedent and theoretical as a source of corrupting patronage. The counter-concern of federalists was that an unbalanced authority of the legislative branch would be a threat to liberty by the encouragement of legislative tyranny. To that point Publius argued in Federalist 47 that "The accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
The American tradition of democratic republicanism thus made ‘checks and balances’ and ‘separation of powers’ fundamental to the architecture of governmental powers. And among the various functions assigned to the Executive branch is the management of governmental agencies, including (for example, in the Federal government) Agriculture, Commerce, Defense, Justice, Labor, Transportation, and Education. This specification of Executive agencies has its parallel in US state governments, including North Carolina, where even the University is defined as an “executive agency.” This was recently confirmed in the HB2 legislation, which the same legislature that promulgated H17 defined as an “Executive branch agency” all “Agencies, boards, offices, departments, and institutions of the executive branch including The University of North Carolina and the North Carolina Community College System.”
SUMMARY: H17 represents a radical departure from long-standing American principles of republican government, including the received view of education agencies as executive agencies. The claim that H17 ‘restores’ a balance recognizing legislative supremacy is a misrepresentation of historical precedent in this state, which has always been favorable to legislative primacy, and has not changed because of any electoral developments. The action to usurp Executive authority in Boards of Trustees appointments also violates the republican principle of education agencies as responsibilities of the executive branch, an understanding that was confirmed by this legislature in Session Law 2016-3, ratified 03/23/2016.
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