Untitled Texas Attorney General Opinion ( 1948 )

155. TEE ATTORNEY GENERAL ~FTEXAS +JBIW. TEXAS PRICE DANIEL PAGAN DIClLsON *--camNmmAx. ~UIAmoIwr- July 10, 1948 Hon. Gibb Gilchrist, President Texas A. & M. College College Station, Texas Opinion No. v-632 Re: Appointment of Chancellor of A. & h. System. Dear President.Gilchrist: You have informed us that the Board of Direc- tors of the Agricultural and Mechanical College of Texas (referred to herein as A. & M.) desires to change the administrative procedure in carrying out its policies in 'the various colleges and agencies entrusted to it by tpe Legislature. These institutions include Texas A. & M. ,John Tarleton Agricu tural College2, North Texas Junior' ~Agricultural College3 (referred to as N. T. A. C.), Prairie ,lArt~.2610: TThe government of the Agricultural and Me- chanicaf College shall,be vested in a Board of Direc- tors D . 0n 2Art, 2616: "The government and direction . .'. of the John Tarleton Agricultural College . . . shall be vested in the Board of Directors of.the Agricultural and Me- chanical Coll'egeof Texas." 3 N. T. A. C. is now operating exclusively under the A. & M. Board of Directors. Art: 2620 provides,that N. T. A. C. shall‘be under the Board of Directors~of A. & M., which is designated as "the supervisory board." The statute also contemplates a local board of five citi- zens appointed by the Governor, subject to the approval of the supervisory board. The local board "shall per- form all the duties required in the management of said College in like manner as governing board of the same character." Art. 2622 further provides that "the local board, in connection with the supervisory board, shall appoint a president and professors of said college and 1.: 56 Hon. Gibb Gilchrist, Page 2 (V-632) View A, & M,4, several experimental stations and exten- sion services, the Texas Forest Service, the Firemen's Training School, and the Rodent Control Service5. The Board proioses to appoint an executive of- ficer to be known as a Chancellor." Under the Chancel- lor will be the presidents of.the colleges and directors of the other agencies. Several reasons for such change are cited in a report of a joint legislative committee of the House and Senate of the 50t Legislature; which report is cited in the note below.% On behalf of the 3 (cont'd) such officers as they may think proper and necessary to put the same into successful operation, and make such rules and regulations . . . as they may deem ad- visable." The local board has not been appointed or acted for several years for reasons not relevant here. Apparently, having two governing boards for one insti- ,, tution was not without its difficulties and conflicts. For purposes of this opinion, it will be assumed that the government and direction of N. T. A. C. is under its supervisory board, the Board of Directors of A. & M. This opinion is here qualified to the extent that further,consideration will begnecessary~in the event a lo~cal, board at N. T. A. C. is appointed and qualifies f&service. 4 Art..2638,: Prairie View "shall be under the control and supervision of the Board of Directors of the Agri- cultural and Mechanical College . . ." 5 Arts, 2613, 2613b, 26158, and 8309b, 6 " The majority Report reads: ". . . T@'aadministration and conduct of the College 'activitiesis exclusively under the jurisdiction and supervision of the Board of Directors. "Doubtless there might well be considered the matter of revision of ,the administration of the system with a view to the streamlining thereof. Some economies~in operations might thereby be effected. This, of course, under the law, is within the discretion of the Board of Directors. It may be that the far-flung and ever- increasing activities,of.the A. &M. College have be- come so vast, and its services so'varied, that no one individual can direct its operations with full famil- Hon. Gibb Gilchrist, Page 3 (V-632) 157 Board, you request an opinion as to the Board's author- ity for such action, and the validity of two rules or regulations putting such policy into action. TWO rules making such change are: "Chapter II, Section 1 General Organization "a. For the purposes of administra- tion, the Agricultural and Mechanical Cal- lege of Texas and all Colleges, Services, and Agencies under the jurisdiction of the Board ,ofDirectors of the Agricultural and Mechanical College of Texas shall constitute the Texas Agricultural and Mechanical Col- lege System, c,onsistingof the following: The Agricultural and Mechanical College of Texas; The North Texas Agricultural College; The John Tarleton Agricultural College; The Prairie View Agricultural and Mechanical College of Texas; The Texas Agricultural 6 (cont'dl iarity of its several services, requisite for the most effective functioning thereof. "The Committee suggests, therefore, that the Board of Directors could properly give consideration to the pos- sibility of creating the Office of Chancellor of the College System. ,He would, under such a program, then assume the overall direction of the entire system, in- cluding, as it does, the graduate and undergraduate schools of the Main College, the North Texas Agricul- tural College, John Tarleton Agricultural College, Prairie 'View A. & M., the Extension Service; Experiment Stations, Field Laboratories, Rodent Control Service, Texas Forest Service, and the Firemen's Training School. The President of the Main College of Arts and Sciences, thus relieved of the many,outside duties now required of him, would be free to devote his full time to the di- rection of the educational training, its student rela- tions and related activities normally expected of a col- lege president in the accepted sense of the term. These recommendations are made to the Board of Directors which has the sole authority to adopt or reject them." (Sen- ate Journal, 50th Legislature, 1947, page 1519.1 158 Hon. ~ifibb Gilchrist, Page 4 (V-632) Experiment Station; The Texas Agricul- tural Extension Service; The Texas Engi- neering Experiment Station; The Texas Engineering Extension Service; The Texas Forest Service; The Firemen's Training School; The Rodent Control Service; Other Agencies and Services as may be author- ized. "b. The executive head of the Texas Agri.cultural and Mechanical College Sys- ternshall be a Chancellor. -.Heis author- ized and directed to administer the Col- leges, Agencies, and Services of the Sys- tem throug$hy executive officer in charge of each. executive in charge of each College shall be designated as President. The executive in charge of each Agency and Service shall be designated as Director. "Chapter III, Section 1 Appointments "a e The Chancellor of the Texas Ag- ricultural and Mechanical College System shall be appointed by the Board of Direc- tors and shall hold office without term subject to the pleasure of the Board. The Vice-Chancellors, the Comptroller, and the Business.%nager of the System; the Presi- dents of the Colleges and Deans; Directors and Vice-Directors of Agencies and Serv- ices; and any other general officials pro- vided by law or authorized by the Board of Directors shall be appointed by the Board pursuant to nomination by the Chancellor. "b. All other officials, teachers, and employees shall be appointed by the respective President or Director with the advice and approval of the Chancellor sub- ject to confirmation of the Board of Di- rectors. Teachers and employees shall be subject to dismissal for cause at any time by the President or Director subject to review by the Chancellor with the right of appeal to the Board of Directors. Hon. Gibb Gilchrist, Page 5 (V-632) 259 The Legislature having invested the direction of these'institutions and activities in the Board of Directors of A. &M., the Board . may not delegate such authority. But it may appoint agents, and may enforce its policies through them. Article 2613 empowers the Board to em loy, for A. & M., such officers as it thinks proper.7 Such power is expressed or implied in the Board's direction of the other agencies. The Board is therefore empow- ered to employ an executive officer, to carry out its policies, and to call that officer a "Chancellor" if it so desires. Having determined and set the policies as to the government and management of the various institu- tions, the Board may direct the Chancellor "to adminis- ter the Colleges, Agencies, and Services" through an ex- ecutive officer.in charge of each (to be known as a President or Director). The Board, therefore has the authorit to issue the first regulation (Ch. f1, Sec. 1, a and b.'I a It is a valid order. The second regulation deals with the appoint- ment of officers and employees of the Colleges and agen- cies (referred to as "the SystemR). The power of ap- pointment isgiven by the Legislature to the Board of Directors of A. &M. College. It cannot be delegated.' But the Board may accept nominations from the Chancel- lor and act thereon. Provision is made for the appointment of other minor officials and employees by the Chancellor or the President or Director of the agency involved, "subject to confirmation of the Board of Directors." It was held in Opinion No. 0-6037, by the Honorable Fagan Dickson, addressed to the President of the Board of Directors of A. &M. College that: "The appointment of these persons (of- ficers and professors) involves the exercise 7Art. 2613: "The Board of Directors is charged with the duties and empowered to do and erform the acts hereinafter set forth as follows: P1) The board shall, when necessary, appoint the president and professors of the college and such other officers as. from time to time, thev may think proper to keep the college in successful operation, and may from time to time abol- ish any office that is in their judgment unnecessary.” Hon. Gibb Gilchrist, Page 6 (V-632) of discretion; and since the statute im- poses the duty to make such appointments on the Board of Directors, the law prohib- its a delegation of the power . . . "It is our further opinion that the words 'subject to confirmation of the Board of Directors' . . . would correct the suggested rule." Following that opinion, we hold that the ap- pointment of persons'"subject to confirmation by the Board of Directors" is not an unconstitutional delega- tion of power and is a valid provision. The final regulation of the Board is that nteachers and employees shall be sub'ect to dismissal for cause 0 . D by the President or &rector, subject to review by the Chancellor with the right of appeal to the Board of Directors." The power and duty of the Board to remove or dismiss such persons is vested in the Board by necessary implication from the statutes. Here again there is a question of delegation of power. The Board, having the power and duty to employ has the power to dismiss or re- move, and it may not delegate that power. The matter of employment, however, is generally a matter of contract between the institution or agency and the person employed. The length of the employment is or may be set by agree- ment,~and the matter of dismissal may likewise be sub- ject to contractual provisions. However, the regulation in question vests removal powers in other persons than the Board of Directors. The same principle was involved in 0 inion No. O-,5252,addressed to the Board of Regents of Tifi e University of Texas, a copy of which is here en- closed. It was there held that while the Board's rule was that professors would not be dismissed without a hearing before's faculty committee, the recommendation of such committee could be advisory only. The decision as to dismissal must be made by the Board. It is therefore recommended, as in 0 inion NO, O-6037, that the dismissal of teachers and empPoyees for cause be made "subject to confirmation of the Board of Directors" in addition to being sub~jectto review by~the Chancellor. This opinion is not to be construed as comment- ing in any manner on the %enure" problem of any Professor Hon. Gibb Gilchrist, Page 7 (V-632) 162 or employee. The regulations here make such persons re- movable "for cause." The statutes place the power to employ and discharge in the Board. The matter of pro- viding hearings and other self-imposed limitations on discharge is a matter of internal policy of the institu- tions and is not within the scope of this opinion. SuMitiY The Board of Directors of A. & M. College may appoint an agent, to be known as a "Chancellor", to carry out its poli- cies in the government of the colleges and other agencies committed to its management by the Legislature. Such Chancellor may carry out the Board's policies through presidents and directors of the various colleges and agencies. The appointment and removal of the presidents, directors, professors, and other officers bf the Texas A. & K. College System shall be made sub- ject to confirmation by the Board of Direc- tors. Yours very truly, ATTORNEY GENERAL OF TEXAS By@2- Joe R. Greenhill Executive Assistant JRG:erc APPROVED: